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)

Thursday, January 30, 2020

Rehearing petition (and guest post) in Mississippi Supreme Court case upholding 12-year prison term for mere possession of cell phone in jail

6a00d83451574769e2022ad3762ba2200c-320wiIn this post earlier this month, I noted a disheartening ruling by the Mississippi Supreme Court upholding 12-year prison term for mere possession of cell phone in jail.  Will Bardwell, an attorney in the Mississippi office of the Southern Poverty Law Center, last week sent me a copy of a motion for rehearing that he helped file in the case (which can be accessed below).  I asked Will if he might want to do a guest posting to go along with my posting of the motion, and here is what he sent my way:

On its edges, sentencing law can be a bit of a technical thicket — difficult to navigate for laymen, or even for practitioners who don’t often work in that field. But at its heart, sentencing law — and the constitutional demands under which it exists – embodies our society’s sense of fairness. Above all else, sentencing demands that punishment must fit the crime.

It is not news that a consensus has developed among Americans that our criminal justice system’s priorities must be recalibrated. Nor is it news that our laws have failed to keep pace with that consensus. Unfortunately, though, the human toll of that failure does continue to make news.

In early January, the Mississippi Supreme Court added another ignominious chapter to that story when it affirmed the 12-year prison sentence of my client, Willie Nash.  In 2017, Willie was arrested for a misdemeanor in Newton County, Mississippi. The county jail’s policy is to strip-search all arrestees, but when Willie arrived, the jail violated that policy — so the cell phone that a search would have uncovered remained with Willie.  Willie never lied about the phone or made any effort to conceal it.  And guards might never have discovered the phone if Willie had not offered it up and provided the passcode to unlock it.

For this, Willie was convicted of taking a cell phone into a jail — and sentenced to an astonishing 12 years in prison.  No fewer than 36 states punish cell phone possession in a correctional facility with no more than five years in prison.  If anyone in American history has ever gotten 12 years for doing what Willie did, then my partners and I at the Southern Poverty Law Center are unaware of it. 

When Willie’s sentencing judge announced that decision, he pointed to Willie’s two prior burglary convictions some two decades earlier and explained that, if prosecutors had indicted Willie as a habitual offender, then Willie could have received 15 years — “so I want you to consider yourself fortunate,” the judge said.

It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way as New Zealand. And you don’t need a law degree to be as alarmed by the Mississippi Supreme Court’s reasoning as by its result.

Like Willie’s sentencing court, the Mississippi Supreme Court rested its decision heavily on Willie’s prior convictions. It pointed out the sentencing judge’s reliance on “evidence of Nash’s criminal history;” and it distinguished authority favorable to Willie by explaining that “Nash’s prior felony convictions subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged him as a habitual offender.”

Like Willie’s sentencing judge, the Mississippi Supreme Court seems to think that Willie should consider himself lucky. But I’ve been in a room with Willie. I’ve looked into his tired eyes, heard his quiet voice, and seen how his oversized prison uniform hangs over his thin, slumping frame.

Willie doesn’t feel lucky.  And the many Mississippians that I’ve spoken to, from the widest imaginable political perspectives, don’t think Willie is lucky.

In fairness, the Mississippi Supreme Court must view Willie’s case through a different lens than most people.  For most of us, the shock to our consciences has been enough for us to know that Willie’s punishment does not fit his actions. For the Mississippi Supreme Court, though, that question has been complicated by the United States Supreme Court’s contorted precedent concerning the Eighth Amendment’s proportionality requirement.

That the Eighth Amendment requires proportionality is no longer up for debate.  Aside from its existence, though, the Court’s decisions over the past 40 years have left nearly every other detail of the proportionality requirement unsettled.  Seemingly irreconcilable decisions have been left unreconciled, and ambiguities have been left unclarified. In recent years, the Court has seemed content to keep its silence on the issue, perhaps hoping that lower courts will clarify what it has muddled.

But the outcome in lower courts has been predictably chaotic.  These unanswered questions are not merely fodder for academic debate.  There are human beings languishing in prison because of this case law jumble. Willie is one of them.

In particular, one unanswered question lies at the heart of Willie’s case: the Mississippi courts’ use of his prior convictions to justify his sentence.  Despite his two burglary convictions nearly 20 years ago, Willie was not charged as a habitual offender.  Mississippi’s courts relied on those convictions anyway -- and urged him to “consider yourself fortunate.”

But none of the United States Supreme Court’s proportionality decisions hold that prior convictions contribute to a crime’s gravity when the defendant was not charged as a recidivist.  In Ewing v. California, the Court insisted that “weighing the gravity of Ewing’s offense” required it to “place on the scales not only his current felony, but also his long history of felony recidivism.” But Ewing had been sentenced under California’s “three strikes” law. Likewise, the defendants in Rummel v. Estelle and Lockyer v. Andrade – both of whose challenges to their life sentences failed – were sentenced under habitual offender statutes.

But Willie wasn’t charged as a habitual offender. And if Mississippi courts wanted to sentence him like a habitual offender, then prosecutors should have charged him as a habitual offender.  But they didn’t.

Not surprisingly, lower courts have taken this unworked detail in different directions.  In 2016, for example, the South Dakota Supreme Court held that “[f]or purposes of challenging the constitutionality of a sentence in a noncapital case, it appears that a defendant’s criminal history is only relevant when the sentence is enhanced under recidivism statutes.”  That court is not alone in its view. Obviously, Willie’s case illustrates that the Mississippi Supreme Court has reached the opposite result; neither is it alone.

I’m hopeful that the Mississippi Supreme Court will correct the injustice of Willie’s case [based on the rehearing motion below] without the need to petition the United States Supreme Court.  Willie’s case certainly does not rely on novel legal theories; even under the proportionality requirement’s framework as unsettled as it is, Willie’s sentence is grossly disproportionate.  If, instead of taking a cell phone into jail, Willie instead had committed second-degree arson or poisoned someone in an effort to kill them, Mississippi law would have imposed a shorter sentence than the one he is serving today.  A 12-year sentence for something so much more innocuous simply doesn’t pass the straight-face test.

But even if the Mississippi Supreme Court reconsiders Willie’s case, our society’s sense of basic fairness cries out for the United States Supreme Court to begin cleaning up the mess that its predecessors have made of the proportionality doctrine.  The cost of that confusion is human lives like Willie’s.  And that cost is growing.

Download Nash v State - Motion for Rehearing (filed)

Prior related post:

January 30, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, January 27, 2020

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

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

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

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

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

Wednesday, January 22, 2020

Council on Criminal Justice releases new papers on "Federal Sentencing Provisions of the 1994 Crime Bill"

Sentencing_Report_LinkI noted in this post this past summer the notable new group working toward criminal justice reform called the Council on Criminal Justice.  In September, I flagged in this post that the Council on Criminal Justice had gotten started on a great new set of  papers and resources taking a close look at the 1994 Crime Bill.  The first two paper in the series, Overview and Reflections by Richard Rosenfeld and Impacts on Prison Populations by William Sabol and Thaddeus Johnson, both provided terrific perspectives and details on the import and impact of the 1994 Crime Bill.

I am now very pleased to report that the third paper in this series has been published under the title "Tough and Smart: Federal Sentencing Provisions of the 1994 Crime Bill."  If you click through to the full paper, you can see that one of the reasons I am pleased to see it published is because I am its author.  I was very honored to get a chance to work with the CCJ team on this project, and all the folks involved with CCJ were quite effectively invested in helping me work through the various complicated federal sentencing stories that emerged from the 1994 Crime Bill.

I recommend that interested persons read this piece in full, as there are lots of intricacies to this story that I was only able to partially capture in what is meant to be a short read.  The start and end of the piece provides a hint of its essential points:

When President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (the Crime Bill), he called it the “toughest and smartest crime bill in our history.” Enhancing penalties across a wide range of offenses, the Crime Bill included many provisions that not only justified the “tough” label, but also fueled “get-tough” rhetoric and behavior by federal, state, and local officials nationwide.  This well-known legacy, however, obscures what may be one of the most consequential sentencing provisions in this massive law — a “smart” sentencing section that has allowed tens of thousands of people convicted of drug crimes to avoid certain severe mandatory minimum terms enacted by Congress in the 1980s....

Reflecting the “tough-on-crime” attitudes of the times, some federal lawmakers criticized the Crime Bill as not tough enough despite its many punitive elements. Just weeks after passage of the landmark legislation, Republican lawmakers introduced the Contract with America, which included a promise to adopt a Taking Back Our Streets Act within the first 100 days of what signers hoped would be a Republican-held Congress.  This pursuit of even harsher penalties and even more federal funding for prison construction than what was authorized in the Crime Bill was not surprising; in fact, such calls reflected much of the political and policy thinking of the time — on both sides of the aisle.  In this era, talking tough was widely seen not only as essential to success at the ballot box, but also as the sound policy response to all crime concerns.

While the spirit and text of the Crime Bill focused on a tougher approach to crime and punishment, its sentencing provisions with among the greatest tangible impact were those that enabled people convicted of lower-level drug offenses to receive less severe sentences, and laid the foundation for future crack cocaine sentencing reforms.  Despite that often overlooked reality, the Crime Bill fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations.

January 22, 2020 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0)

Friday, January 17, 2020

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

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

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

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

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

Thursday, January 09, 2020

"Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?"

The title of this post is the title of this new Mother Jones piece with this subheadline: "A handful of reformist DAs think so. But they’re meeting plenty of resistance."  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week....

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.

January 9, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Tuesday, December 24, 2019

"An Intellectual History of Mass Incarceration"

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

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little.  This Article asks, as Americans built the carceral state, what were we thinking?  The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century.  In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects.  For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing.  This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law.  The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.

December 24, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, December 19, 2019

PPI releases "Youth Confinement: The Whole Pie 2019"

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

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

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

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

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

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

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

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

Monday, December 16, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 13, 2019

Reviewing LWOP populations in Louisiana and nationwide

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 11, 2019

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

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

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

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

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

Tuesday, December 03, 2019

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

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

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

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

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

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

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

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

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

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

Sunday, November 24, 2019

Two new disconcerting reports on southern justice

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

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

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

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

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

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

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

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

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

Wednesday, November 13, 2019

"Usual Cruelty The Complicity of Lawyers in the Criminal Injustice System"

Usual_cruelty_finalThe title of this post is the title of this notable new book authored by former public defender, Alec Karakatsanis.  The publisher, The New Press, provides this accounting of the book: 

From an award-winning civil rights lawyer, a profound challenge to our society’s normalization of the caging of human beings, and the role of the legal profession in perpetuating it.

Alec Karakatsanis is interested in what we choose to punish.  For example, it is a crime in most of America for poor people to wager in the streets over dice; dice-wagerers can be seized, searched, have their assets forfeited, and be locked in cages. It’s perfectly fine, by contrast, for people to wager over international currencies, mortgages, or the global supply of wheat; wheat-wagerers become names on the wings of hospitals and museums.

He is also troubled by how the legal system works when it is trying to punish people.  The bail system, for example, is meant to ensure that people return for court dates. But it has morphed into a way to lock up poor people who have not been convicted of anything.  He’s so concerned about this that he has personally sued court systems across the country, resulting in literally tens of thousands of people being released from jail when their money bail was found to be unconstitutional.

Karakatsanis doesn’t think people who have gone to law school, passed the bar, and sworn to uphold the Constitution should be complicit in the mass caging of human beings — an everyday brutality inflicted disproportionately on the bodies and minds of poor people and people of color and for which the legal system has never offered sufficient justification. Usual Cruelty is a profoundly radical reconsideration of the American “injustice system” by someone who is actively, wildly successfully, challenging it.

This Amazon page about the book provides a "look inside" that includes the introduction explaining that the book is primarily the collection of three notable essays by Alec Karakatsanis that have been previously published.  This recent Intercept piece has an interview with the author that gets set up this way:

Alec Karakatsanis's “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student.  Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system.  Litigated with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while “Usual Cruelty” is ultimately an abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons aren’t the default response to all social problems, Karakatsanis is also keenly aware of how lawyers can use the law’s tools to fight the law’s harm.  At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized and entrenched” they barely give us pause.

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

Sunday, November 10, 2019

Iowa court rejects LWOP inmate's claim that his brief "death" before medical resuscitation completed his "life" sentence

A number of readers kindly made sure I did not miss an amusing sentencing story out of Iowa effectively summarized by the headline of this local press report, "Court: Life sentence not finished until death is permanent." Here are the basics via the press account:

The Iowa Court of Appeals has rejected the claims of a Wapello County man convicted of murder in 1997 who said a medical emergency fulfilled his life sentence.

Benjamin Schreiber was convicted in the 1996 beating death of John Terry. Court documents show in March 2015 large kidney stones “caused him to urinate internally, which in turn led him to developing septic poisoning.” Schreiber collapsed in his prison cell and was taken to the hospital, where “he was resuscitated five times.” He underwent surgery and antibiotic treatment and eventually recovered.

According to the court’s ruling, “Schreiber filed this [post-conviction relief] application in April 2018. In it he claims he momentarily died at the hospital, thereby fulfilling his ‘life’ sentence … . Because his sentence has been fulfilled, he argues, he is imprisoned illegally and should be immediately released.”

The court ruling is available in full at this link, and here is the heart of its legal analysis and rejection of the inmate's claim:

In essence, Schreiber claims that he “died” and was resuscitated by medical staff in 2015 against his wishes, thereby completing his sentence.  He asserts he was sentenced to life without parole, “but not to Life plus one day.”  Therefore, he is being held in violation of his rights under the Due Process Clause and the Fifth and Fourteenth Amendments to the United States Constitution.  We do not find his argument persuasive.  He cites no case law that supports his position, and Iowa Code section 902.1 directs the district court to commit defendants guilty of class “A” felonies — like Schreiber — “into the custody of the director of the Iowa department of corrections for the rest of the defendant’s life.” Iowa Code § 902.1(1) (emphasis added).  Because chapter 902 does not define “life,” we give that term its plain meaning.  State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011). “[O]ur primary goal is to give effect to the intent of the legislature.” State v. Anderson, 782 N.W.2d 155, 158 (Iowa 2010).

The plain reading of the statute is that a defendant convicted of a class “A” felony must spend the rest of their natural life in prison, regardless of how long that period of time ends up being or any events occurring before the defendant’s life ends.  We do not believe the legislature intended this provision, which defines the sentences for the most serious class of felonies under Iowa law and imposes its “harshest penalty,” State v. Oliver, 812 N.W.2d 636, 645 (Iowa 2012), to set criminal defendants free whenever medical procedures during their incarceration lead to their resuscitation by medical professionals.  See State v. Louisell, 865 N.W.2d 590, 598 & n.6 (Iowa 2015) (noting “life in prison is the intended punishment for” class “A” felonies and “[l]esser offenses are notably punished less severely”).  We conclude the correct reading of section 902.1(1) requires Schreiber to stay in prison for the rest of his natural life, regardless of whether he was resuscitated against his wishes in 2015.

November 10, 2019 in Scope of Imprisonment | Permalink | Comments (2)

Thursday, November 07, 2019

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

November 7, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 29, 2019

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

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

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

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

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

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

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

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

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

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

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

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

What does this all mean?

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

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

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

4.  Nothing at all.

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

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

            — Anonymous

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

Monday, October 28, 2019

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

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

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

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

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

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

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

Thursday, October 24, 2019

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

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

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

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

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

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

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

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

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