Sentencing Law and Policy

"Digital Expungement"

The title of this post is the title of this paper I just saw on SSRN authored by Eldar Haber.  Here is its abstract:

Digital technology might lead to the extinction of criminal rehabilitation.  In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet.  The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used.  These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement.  Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged.  Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows.  After an introduction, Part II examines rehabilitation and expungement as facets of criminal law.  Part III explores the challenges of digital technology to rehabilitation measures.  Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age.  It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution.  Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

Exploring what neuroscience may mean for criminal justice

Last week brought these two notable pieces in response to some recent research on psychology, neuroscience and the law.  Here are links and brief excerpts:

From Andrew Calderson at The Marshall Project, "Dangerous Brain: Can neuroscience predict how likely someone is to commit another crime?"

Over the past two decades, brain scans and other neuroscientific evidence have become commonplace in courtrooms. So much so that a defendant can file an “ineffective assistance of counsel” claim if his or her lawyer fails to introduce relevant brain tests. And defense lawyers ordinarily submit brain imaging to bolster claims of their clients’ incompetency or insanity.

Still some legal scholars and attorneys decry the growing presence of neuroscience in courtrooms, calling it a “double-edged sword” that either unduly exonerates defendants or marks them as irredeemable future dangers. “But that’s not right,” said Deborah Denno, a professor and director of the Neuroscience and Law Center at Fordham University Law School, who conducted an analysis of every criminal case that used neuroscientific evidence from 1992 to 2012.  Her analysis showed that brain evidence is typically introduced to aid fact-finding with more “complete, reliable, and precise information.”  She also showed that it is rarely used to support arguments of future dangerousness.

To date, neuroprediction has not been admitted into the courtroom or parole hearings. Some scholars, like Thomas Nadelhoffer, a fellow at the Kenan Institute for Ethics at Duke University, who popularized the term neuroprediction, argue that the science is reliable enough to integrate with other risk assessments.

From Dane Stallone at The Crime Report, "How Neuroscience is Reforming Criminal Justice"

In the courtroom, testimony or evidence about abnormalities or damage to a defendant’s brain has been used to assess the level of responsibility for criminal behavior. But new research into how the brain works is contributing to innovative strategies for reducing recidivism and developing alternatives to incarceration.

The Mind Research Network, a non-profit based in Albuquerque, N.M., has been on the forefront of discovering how the brains of psychopaths and violent offenders differ from the average person’s.  Psychopaths make up a substantial part of prison population and are 20 to 25 times more likely to be in prison than non-psychopaths.  Dr. Kent Kiehl, a lead researcher for the network, says the research can help target appropriate treatment for example, for youths who have demonstrated violent behavioral traits.  “This will improve our ability to predict which kids are high-risk, and how to individually tailor treatment to help kids change,” he told The Crime Report. 

"The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms.  In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.”

Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness.  As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system.  Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

SCOTUS rules 5-4 to extend Fourth Amendment protections to cell-site records in Carpenter

The Supreme Court this morning handed down the biggest criminal case of its concluding Term, Carpenter v. US, No. 16-402 (S. Ct. June 22, 2018) (available here). Though I will leave it to Fourth Amendment experts to unpack the majority opinion (authored by Chief Justice Roberts and joined by all the more liberal Justices) and all the separate dissenting opinions (there are four), my first-cut sense is that this is a "big but narrow" win for criminal defendants and privacy advocates.  Here are a few key passages from the majority opinion leading me to that conclusion:

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.  The location information obtained from Carpenter’s wireless carriers was the product of a search....

We therefore decline to extend Smith and Miller to the collection of CSLI.  Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

* * *

Our decision today is a narrow one.  We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).  We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.  Nor do we address other business records that might incidentally reveal location information.  Further, our opinion does not consider other collection techniques involving foreign affairs or national security.  As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”  Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944).

"Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders"

The title of this post is the title of this new paper available via SSRN authored by Ben McJunkin and J.J. Prescott.  Here is its abstract:

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices.  Many offenders will be monitored for life.  The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree.

In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance.  Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable.  This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

"Judicial Appraisals of Risk Assessment in Sentencing"

The title of this post is the title of this notable new paper now available via SSRN authored by John Monahan, Anne Metz and Brandon Garrett.  Here is the abstract:

The assessment of an offender’s risk of recidivism is emerging as a key consideration in sentencing policy in many American jurisdictions.  However, little information is available on how actual sentencing judges view this development.  This study surveys the views of a population sample of judges in Virginia, the state that has gone farther than any other in legislatively mandating risk assessment for certain drug and property offenders. Results indicate that a strong majority of judges endorse the principle that sentencing eligible offenders should include a consideration of recidivism risk.  However, a strong majority also report the availability of alternatives to imprisonment in their jurisdictions to be inadequate at best.  Finally, most judges oppose the adoption of a policy requiring them to provide a written reason for declining to impose alternative interventions on “low risk” offenders.

"Techno-Policing"

The title of this post is the title of this interesting new piece authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

In July 2017, the New York Times reported that Three Square Market, a Wisconsin based technology company, was asking its employees to have a microchip injected between their thumb and index finger.  More than half of the employees consented to the implant, which would function as a type of swipe card.  As one employee put it, “In the next five to 10 years, this is going to be something that isn’t scoffed at so much, or is more normal.  So I like to jump on the bandwagon with these kind of things early, just to say that I have it.”

What might the implanting of microchips portend for criminal justice issues?  Might we one day implant chips in convicted felons, or arrestees?  Or if not all arrestees, perhaps those released on bail?  Indeed, at a time when many scholars and legislators are rethinking bail, might the availability of removable chips strengthen the argument against pretrial detention, and against money bail?  And what are the implications for sentencing, especially algorithmic risk-based sentencing?  Or perhaps a closer fit, what are the implications for releasing defendants who have completed their sentences and are eligible for parole? 

At a time when the Court has given its blessing to civil commitment for sex offenders, how might the availability of microchips to monitor the coming and going of individuals — like a wireless fence — change the analysis?  Finally, and perhaps most central to this essay, what are the possibilities when we couple the availability of microchips with access to Big Data?  This short essay, written for the “Big Data and Policing” symposium issue of the Ohio State Journal of Criminal Law, begins a conversation about these and other questions.

"Principles of Risk Assessment: Sentencing and Policing"

The title of this post is the title of this new essay by Christopher Slobogin recently posted to SSRN. Here is the abstract:

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making.  To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs).  RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged.  But RAIs bring with them their own set of controversies.

In recognition of these concerns, this brief paper proposes three principles — the fit principle, the validity principle, and the fairness principle — that should govern risk assessment in criminal cases.  After providing examples of RAIs, it elaborates on how the principles would affect their use in sentencing and policing.  While space constraints preclude an analysis of pretrial detention, the discussion should make evident how the principles would work in that setting as well.

"Turn Prisons Into Colleges" ... and urging colleges to invest in prisoner education

The quoted portion title of this post is the headline of this recent New York Times commentary authored by Elizabeth Hinton.  Here are excerpts (with a little commentary at the end from me):

Imagine if prisons looked like the grounds of universities. Instead of languishing in cells, incarcerated people sat in classrooms and learned about climate science or poetry — just like college students.  Or even with them.

This would be a boon to prisoners across the country, a vast majority of whom do not have a high school diploma. And it could help shrink our prison population. While racial disparities in arrests and convictions are alarming, education level is a far stronger predictor of future incarceration than race.

The idea is rooted in history. In the 1920s, Howard Belding Gill, a criminologist and a Harvard alumnus, developed a college-like community at the Norfolk State Prison Colony in Massachusetts, where he was the superintendent. Prisoners wore normal clothing, participated in cooperative self-government with staff, and took academic courses with instructors from Emerson, Boston University and Harvard. They ran a newspaper, radio show and jazz orchestra, and they had access to an extensive library....

Researchers from the Bureau of Prisons emulated this model when they created a prison college project in the 1960s. It allowed incarcerated people throughout the country to serve their sentences at a single site, designed like a college campus, and take classes full-time. Although the project was never completed, San Quentin State Prison in California created a scaled-down version with support from the Ford Foundation, and it was one of the few prisons then that offered higher education classes.

Today, only a third of all prisons provide ways for incarcerated people to continue their educations beyond high school. But the San Quentin Prison University Project remains one of the country’s most vibrant educational programs for inmates, so much so President Barack Obama awarded it a National Humanities Medal in 2015 for the quality of its courses.

The idea of expanding educational opportunities to prisoners as a way to reduce recidivism and government spending has again gained momentum. That’s partly because of a study published in 2013 by the right-leaning RAND Corporation showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Lawmakers have rightly recognized the wisdom in turning prisons into colleges. In 2015, Mr. Obama created the Second Chance Pell Pilot Program, which has enrolled more than 12,000 incarcerated students in higher education programs at 67 different schools. The Senate Committee on Health, Education, Labor and Pensions is considering permanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”...

Mass incarceration is inextricably linked to mass undereducation in America. Yale, Princeton, Cornell, Georgetown, Wesleyan and New York University are among a handful of institutions that realize this and have begun to create ways for incarcerated people to take college classes.  These universities recognize that they have a moral responsibility to pursue educational justice for prisoners, a group that has disproportionately attended under-resourced public schools.

College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery.  Expanding prison education programs would link those two ventures in a forward-thinking way.  It’s clear that education will continue to be a central part of criminal justice reform.  The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

I very much like that this commentary is not merely suggesting prisons ought to foster educational opportunities, but also that it calls upon "college presidents across the country" to commit to "expanding prison education programs."  I blogged here last month about the new program in New York through which the company JPay will provide all New York state prison inmates with a electronic tablet, through which prisoners can purchase programming. I know many colleges and universities have a range of on-line degree programs and ample on-line education content.  I would love to see some higher education institutions partnering with JPay or other like companies to provide education content to prisons for free or at the lowest possible cost. 

As I see it, lots of the needed infrastructure and substantive content already exists to make college-level educational opportunities available to more prisons, if university administrators and prison official are truly committed to making a difference in this way.  In other words, I think there already is a way, the only question is whether there is the will.

New York makes deal to bring (sort-of) free electronic tablets to all state prisoners

As reported in this CNN article, headlined "In New York, all 51,000 state prisoners will get their own tablet computers," a notable form of technology is now on its way to a notable New York population. Here are some of the details:

Inmates in New York state prisons will soon be able to read e-books, listen to music and email family members while in prison -- all from their own tablet computers.

The New York Department of Corrections and Community Supervision entered into a deal with JPay that will provide all New York state prison inmates with a tablet.  JPay is a company that provides technology and services that help those who are incarcerated stay connected with people outside prison, according to the company's website.

There are approximately 51,000 inmates in New York state prisons, the corrections department said.  Anthony J. Annucci, the department's acting commissioner, called the development a "groundbreaking move."

"As we continue to use technology to make our prisons safer, we will also leverage it to improve operations and interactions with family and friends by expanding services to our population," Annucci said Tuesday during a state legislative budget hearing.

Annucci said the tablets would provide inmates with "the ability to access free educational material."  Prisoners will also able to file grievances with the prison directly from the tablets.

The New York state government said it won't pay anything for the inmates' tablets. They are free as part of a deal between the Department of Corrections and Community Supervision and JPay to start a pilot electronic financial system designed to let family and friends send money to people in prison more easily, according to the department.

The department didn't say when the tablet program would go into effect. Other states have recently implemented similar programs. Both Georgia and Colorado have started programs that provide inmates with tablets. Georgia is also working with JPay.

In a statement announcing the "alternative learning tablets" in Georgia, officials said the tablets will allow inmates to "maintain and enhance family communications; and assist with their re-entry into society." Connecticut recently announced plans to implement a similar program in its prisons.

At a Criminal Justice Policy Advisory Commission meeting on January 25, Department of Correction Commissioner Scott Semple said that his agency plans to introduce tablets into the correctional system "sometime in the spring." "These tablets are an embedded network where there is no risk of victimization with the use of Wi-Fi, but it has a lot of capability to keep people connected with technology," Semple said.

The CNN report does not fuly explain what is fully going on here, especially with respect to the functioning economics. Helpfully, this local article provides these additional details:

JPay makes a tablet known as the JP5, which is specialized for prisons.  The tablets will be on a secured network with access only to pre-approved apps and features and not a typical Internet browser, according to the company.

The tablets will connect to the email program through kiosks with secured lines in the prisons.  The company pledged to install the needed infrastructure and perform maintenance on its own dime. The state is not set to make any money off the tablets, according to DOCCS.

The tablets will, however, provide a potential revenue stream to JPay. Each will come pre-loaded with certain pre-approved books and educational materials.

But inmates will be able to purchase certain add-ons, such as music, through JPay. The company didn't say Thursday how much those extras would cost.

Inmates will also have to pay to send emails on the tablets, according to JPay. The company will keep the money; the state won't be taking a commission.

"Similar to purchasing a song on iTunes or an online game, incarcerated individuals will have the same opportunity to purchase entertainment and media products and download them onto the JP5 device," JPay said in a statement. "There are fees associated with those purchases, as well as sending emails."

"Even Imperfect Algorithms Can Improve the Criminal Justice System"

The title of this post is the headline of this recent New York Times commentary authored by Sam Corbett-Davies, Sharad Goel and Sandra González-Bailón. Here are excerpts:

In courtrooms across the country, judges turn to computer algorithms when deciding whether defendants awaiting trial must pay bail or can be released without payment. The increasing use of such algorithms has prompted warnings about the dangers of artificial intelligence.  But research shows that algorithms are powerful tools for combating the capricious and biased nature of human decisions.

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes.  In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released.  Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

Algorithms have also proved useful in informing sentencing decisions. In an experiment in Philadelphia in 2008, an algorithm was used to identify probationers and parolees at low risk of future violence.  The study found that officers could decrease their supervision of these low-risk individuals — and reduce the burdens imposed on them — without increasing rates of re-offense.

Studies like these illustrate how data and statistics can help overcome the limits of intuitive human judgments, which can suffer from inconsistency, implicit bias and even outright prejudice.

Algorithms, of course, are designed by humans, and some people fear that algorithms simply amplify the biases of those who develop them and the biases buried deep in the data on which they are built.  The reality is more complicated.  Poorly designed algorithms can indeed exacerbate historical inequalities, but well-designed algorithms can mitigate pernicious problems with unaided human decisions.  Often the worries about algorithms are unfounded...

Still, like humans, algorithms can be imperfect arbiters of risk, and policymakers should be aware of two important ways in which biased data can corrupt statistical judgments. First, measurement matters. Being arrested for an offense is not the same as committing that offense.  Black Americans are much more likely than whites to be arrested on marijuana possession charges despite using the drug at similar rates. As a result, any algorithm designed to estimate risk of drug arrest (rather than drug use) would yield biased assessments.  Recognizing this problem, many jurisdictions — though not all — have decided to focus on a defendant’s likelihood of being arrested in connection with a violent crime, in part because arrests for violence appear less likely to suffer from racial bias....

The second way in which bias can enter the data is through risk factors that are not equally predictive across groups.  For example, relative to men with similar criminal histories, women are significantly less likely to commit future violent acts.  Consequently, algorithms that inappropriately combine data for all defendants overstate the recidivism risk for women, which can lead to unjustly harsh detention decisions.  Experts have developed gender-specific risk models in response, though not all jurisdictions use them. That choice to ignore best statistical practices creates a fairness problem, but one rooted in poor policy rather than the use of algorithms more generally.

Despite these challenges, research shows that algorithms are important tools for reforming our criminal justice system.  Yes, algorithms must be carefully applied and regularly tested to confirm that they perform as intended. Some popular algorithms are proprietary and opaque, stymieing independent evaluation and sowing mistrust. Likewise, not all algorithms are equally well constructed, leaving plenty of room for improvement.  Algorithms are not a panacea for past and present discrimination.  Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices.  But well-designed algorithms can counter the biases and inconsistencies of unaided human judgments and help ensure equitable outcomes for all.

"Assessing Risk Assessment in Action"

The title of this post is the title of this interesting new paper available via SSRN authored by Megan Stevenson.  Though the paper addresses pretrial risk-assessment, I think folks interested in risk-assessment tools at sentencing should be interested in the findings.  Here is the abstract:

Recent years have seen a rush towards evidence-based tools in criminal justice.  As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges.  Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities.  The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation.

This Article is one of the first studies to document the impacts of risk assessment in practice.  It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area.  Using rich data on more than one million criminal cases, the paper shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits.  Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well.  Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for.

Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects.  Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation.  If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them.  Such a process would be evidence-based criminal justice at its best: not a flocking towards methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.

Fascinating look at sentencing mitigation videos (and advocacy film festival)

The New York Times has this great new "op-doc" by Lance Oppenheim on the topic of sentencing mitigation videos under the headline "No Jail Time: The Movie." All sentencing fans will want to take the full 10 minutes to check out the video that is the heart of this op-doc (e,g., two-thirds in is an interesting reference to "the real America"). Here is part of the text that the filmmaker has with the video:

When my parents went to law school in the 1980s, they took courses on contracts, torts, criminal law, constitutional law — the list goes on. While there were lessons on persuasion, to be sure, they never took a class on how to tell a story. And they certainly never learned how to make a film.

Today, however, a growing number of lawyers are creating empathetic biographical mini-documentaries, or “sentencing videos,” to reduce their clients’ prison sentences. Inspired by the storytelling techniques of traditional documentary film, some lawyers team up with independent filmmakers while others become filmmakers themselves. These films are made for an audience of one: the presiding judge.

While videos have historically been permitted in the courtroom, this phenomenon took off in 2005, when the Supreme Court, in United States v. Booker, allowed trial courts to consider an offender’s “personal history and characteristics.” Before Booker, judges were bound by sentencing guidelines and were generally restricted in looking past a defendant’s crime and criminal record.

In sentencing videos, lawyers try to portray their clients in a positive light, notwithstanding the nature of the crime of which they were found guilty. These short videos, which can cost $5,000 to $25,000 to make, can be extremely effective, sometimes substantially decreasing sentences, including those involving the death penalty.

I immersed myself in this phenomenon at the The Sentencing and Post-Conviction Film Festival, held in New Orleans in June at an annual training conference for federal public defenders. The event is organized by Doug Passon, an attorney, filmmaker, attorney-filmmaker, and sentencing video expert.

Mr. Passon, who took film classes after law school and now runs a joint law firm and video production company in Scottsdale, Ariz., treats sentencing videos in an artful manner nearly indistinguishable from narrative-driven, fictional films. He has narrowed his focus to how sentencing videos can sway a judge’s decision. Having seen results from his own clients’ films, he’s determined to teach other lawyers how to create powerful stories.

In a drab hotel conference room filled with beleaguered lawyers, Mr. Passon offers a model: “Make judges suffer.” Not only should judges “agonize over the proper sentence in each case,” Mr. Passon said, they must also “truly feel the client’s pain as they do so.”

In photography and film, there’s an elusive color tone halfway between black and white called middle gray. Just like the phenomenon of middle gray, sentencing videos exist in an in-between space where legal conceptions of fact and fiction, right and wrong, become amorphous. Even though the videos are grounded in truth, their ability to play with judges’ emotions challenge the courtroom’s conception of “truth, the whole truth, and nothing but the truth.” What I discovered from looking at the growing practice of sentencing videos was far more complicated than I ever imagined.

In the aftermath of making this film, and as a filmmaker myself, I have continued to ask myself whether all documentaries are like sentencing videos. Facts presented in a subjective manner, with footage altered or deleted to serve the filmmaker’s message and elicit a particular emotion from an audience. In the case of sentencing mitigation films, we know the judge will be the final arbiter. For all other documentaries, though, the court of public opinion will need to decide what is, in fact, “true.”

A few prior related posts about sentencing videos:

• Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity
• "'Not Just a Common Criminal': The Case for Sentencing Mitigation Videos"
• Could video kill the sentencing brief?

Anyone have hot sentencing takes on the Supreme Court's big Fourth Amendment Carpenter case being argued today?

Folks interested in both criminal law and technology have been buzzing about the case Carpenter v. United States for quite some time.  Today, finally, the Supreme Court hears oral argument on this basic issue: "Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment."

As they do so well, the folks at SCOTUSblog provide lots of helpful background and coverage though this case page with all the briefs linked, this preview by Amy Howe, and this on-line summer symposium.  And I expect SCOTUSblog will have lots of post-argument analysis this afternoon and in the days ahead, especially if this morning's oral argument is as interesting as everyone expects.

I have not blogged about the Carpenter case in part because it is well covered by many others and in part because the sentencing echoes of the case may be remote.  But practitioners may see more direct connections between Carpenter and sentencing than I see from the ivory tower, and I welcome this morning any and all "hot takes" on the case as it might relate to any and all sentencing stories.

Expressing concerns about how risk assessment algorithms learn

This New York Times op-ed, headlined "When an Algorithm Helps Send You to Prison," is authored by Ellora Thadaney Israni, a law student and former software engineer at Facebook. In the course of covering now familiar ground in the debate over the use of risk assessment tools at sentencing, the piece adds some points about how these tools may evolve and soundly urges more transparency in their creation and development:

Machine learning algorithms often work on a feedback loop.  If they are not constantly retrained, they “lean in” to the assumed correctness of their initial determinations, drifting away from both reality and fairness.  As a former Silicon Valley software engineer, I saw this time and again: Google’s image classification algorithms mistakenly labeling black people as gorillas, or Microsoft’s Twitter bot immediately becoming a “racist jerk.”...

With transparency and accountability, algorithms in the criminal justice system do have potential for good.  For example, New Jersey used a risk assessment program known as the Public Safety Assessment to reform its bail system this year, leading to a 16 percent decrease in its pre-trial jail population.  The same algorithm helped Lucas County, Ohio double the number of pre-trial releases without bail, and cut pre-trial crime in half.  But that program’s functioning was detailed in a published report, allowing those with subject-matter expertise to confirm that morally troubling (and constitutionally impermissible) variables — such as race, gender and variables that could proxy the two (for example, ZIP code) — were not being considered.

For now, the only people with visibility into COMPAS’s functioning are its programmers, who are in many ways less equipped than judges to deliver justice.  Judges have legal training, are bound by ethical oaths, and must account for not only their decisions but also their reasoning in published opinions.  Programmers lack each of these safeguards. Computers may be intelligent, but they are not wise.  Everything they know, we taught them, and we taught them our biases.  They are not going to un-learn them without transparency and corrective action by humans.

"In Defense of Risk-Assessment Tools"

The title of this post is the headline of this notable new Marshall Project commentary authored by Adam Neufeld. its subheadline highlights its main theme: " Algorithms can help the criminal justice system, but only alongside thoughtful humans." And here is an excerpt:

It may seem weird to rely on an impersonal algorithm to predict a person’s behavior given the enormous stakes.  But the gravity of the outcome — in cost, crime, and wasted human potential — is exactly why we should use an algorithm.

Studies suggest that well-designed algorithms may be far more accurate than a judge alone.  For example, a recent study of New York City’s pretrial decisions found that an algorithm’s assessment of risk would far outperform judges’ track record.  If the city relied on the algorithm, an estimated 42 percent of detainees could be set free without any increase in people skipping trial or committing crimes pretrial, the study found.

But we are far from where we need to be in the use of these algorithms in the criminal justice system.  Most jurisdictions don’t use any algorithms, relying instead on each individual judge or decisionmaker to make critical decisions based on their personal experience, intuition, and whatever they decide is relevant. Jurisdictions that do use algorithms only use them in a few areas, in some instances with algorithms that have not been critically evaluated and implemented.

Used appropriately, algorithms could help in many more areas, from predicting who needs confinement in a maximum security prison to who needs support resources after release from prison.

However, with great (algorithmic) power comes great (human) responsibility.  First, before racing to adopt an algorithm, jurisdictions need to have the foundational conversation with relevant stakeholders about what their goals are in adopting an algorithm.  Certain goals will be consistent across jurisdictions, such as reducing the number of people who skip trial, but other goals will be specific to a jurisdiction and cannot just be delegated to the algorithm’s creator....

Many criticisms of algorithms to date point out where they fall short.  However, an algorithm should be evaluated not just against some perfect ideal, but also against the very imperfect status quo.  Preliminary studies suggest these tools improve accuracy, but the research base must be expanded.  Only well-designed evaluations will tell us when algorithms will improve fairness and accuracy in the criminal justice system.

Public officials have a social responsibility to pursue the opportunities that algorithms present, but to do so thoughtfully and rigorously.  That is a hard balance, but the stakes are too high not to try.

A few (of many) prior related posts:

• Thoughtful account of what to think about risk assessment tools
• "The Use of Risk Assessment at Sentencing: Implications for Research and Policy"
• Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
• Parole precogs: computerized risk assessments impacting state parole decision-making
• ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
• Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS 
• "Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men" 

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

"The Wireless Prison: How Colorado’s tablet computer program misses opportunities and monetizes the poor"

The title of this post is the title of this lengthy new Prison Policy Initiative posting about an important new part of the prison experience in a growing number of jurisdictions.  I recommend the full piece, and here are excerpts from how it starts and concludes (with links from the original):

A recent Denver Post article reports that the Colorado state prison system has awarded a contract to prison communications giant GTL (formerly Global Tel*Link) for a tablet program that will eventually be deployed in all the state’s prisons.

The Colorado Department of Corrections (DOC) is somewhat of an early adopter of emerging communications technology.  For several years it has offered electronic messaging, an email-like service that allows people in prison to send and receive messages using a proprietary, fee-based platform operated by a contractor.  Colorado DOC’s electronic messaging program isn’t perfect, but its rollout was notable for giving people a new communication option.  The tablet program, on the other hand, foreshadows a potential new paradigm in corrections, shifting numerous communications, educational, and recreational functions to a for-profit contractor; and, at the same time, making incarcerated people and their families pay for services, some of which are now commonly funded by the state.

What makes the Colorado/GTL contract especially frustrating is that it could have been an innovative step toward providing incarcerated people with useful technology. Experts who have studied government technology contracting warn that projects often fail because details are not sufficiently thought through.  The Colorado DOC seems to have walked down this familiar path by focusing largely on its own financial interest without giving much thought to the user experience or the financial impact on incarcerated people and their families....

Historically, people in prison have communicated with the outside world using tools that were simultaneously specialized and universal. Specialized in the sense that letters and phone calls were subject to restrictions and monitoring for security.  Universal in the sense that the actual communications networks were the same ones used by the population at large — namely the nation’s mail system and the network of Bell telephone companies.  These networks charged reasonable, regulated rates for universal service.   Emerging technologies for prison communication are taking a decidedly different approach: instead of applying security protocols to a general purpose network, prisons are relying on specialized providers that use proprietary systems and charge user fees far in excess of cost.  The profits of this model are then divided among the prison systems and the private equity firms that own the providers.

New technologies have the potential to help incarcerated people.  But the ways in which such systems are being implemented tend to focus on profits over people.  The Colorado/GTL contract provides other jurisdictions with a case study in how new technologies can be implemented in ways that financially exploit incarcerated people and their support networks.  Other jurisdictions should view the Colorado experience with caution, and strive to develop better, more humane models for bringing prison communications into the twenty-first century.

SCOTUS declares unconstitutional North Carolina criminal law restricting sex offender access to social media

Today was a big day for the First Amendment in the US Supreme Court.  In addition to a notable First Amendment trademark ruling, the Court handed down a widely anticipated ruling in Packingham v. North Carolina, No. 15–1194 (S. Ct. June 19. 2017) (available here), dealing with a state law restricting internet access for sex offenders.  Here is how the Court's majority opinion in Packingham, authored by Justice Kennedy, gets started and a key closing paragraph:

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.  The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment....

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.  Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The majority opinion in Packingham is quite short, but that does not mean it does not pack a punch.  In fact, Justice Alito authored an extended concurrence which was joined by the Chief Justice and Justice Thomas in order to lament some of the "undisciplined dicta" in Justice Kennedy's short majority opinion.  Here is how the concurrence begins:

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982) — but it has a staggering reach.  It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children.  Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta.  The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.  Ante, at 4–5.  And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.  I am troubled by the implications of the Court’s unnecessary rhetoric.

(Though the issues in Packingham are no laughing matter, I am getting a giggle thinking about whether the phrase "undisciplined dicta" would better serve as my stage name if I was part of a nerdy rap band or just ought to be made into a rubber-stamp to help all my students add that commentary to course evaluations.)

New lifetime GPS tracking for old sex offenders raising concerns in Missouri

This lengthy local article, headlined "Hundreds of Missouri sex offenders now required to wear GPS monitoring devices for life," reports on a new sex offender monitoring law that is causing consternation. Here are excerpts:

A sex offender from St. Charles County thought he had moved on with his life after successfully completing five years of probation for sending webcam photographs of his genitals to an undercover police officer posing as a 13-year-old girl.  Now he’s among hundreds of people in Missouri who are learning they must attach GPS monitoring systems to their ankles for life, even though such a requirement wasn’t part of their sentencing agreement.

The devices send out alerts if an offender lingers near a school or a park.  Cut the wide black strap and the waterproof device will tell on them. It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1.  Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.  Previously, the monitoring technology was used for a more limited class of high-risk offenders.

The St. Charles man is among several sex offenders who are suing and challenging the state. In the lawsuit, in which he is named only as D.G., the 40-year-old argues that the law didn’t exist when he pleaded guilty.  He claims he’s no longer “legally subject” to the jurisdiction of state prison authorities. He argues that he shouldn’t be required to pay monthly supervision fees for decades, nor have travel or residency restricted for life.

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.  “We understand that this change may be unexpected,” Kempker said in the letter.  “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Many sex offenders panicked and started calling lawyers. Some are confused: for instance, those no longer on supervision who moved away from Missouri.

A 41-year-old sex offender from south St. Louis County said he sees the changes as unlawful, too costly and ineffective.  “Lifetime. For the rest of your life. I can’t even comprehend it,” said the man, who didn’t want to be identified to avoid bringing more unwanted attention to himself.

According to court records, he pleaded guilty in 2012 to first-degree child molestation for touching the genitalia of a friend’s 7-year-old daughter.  The first-time offender was sentenced to 10 years in prison. He spent four months behind bars before he was let out to undergo treatment in the community. So long as he did well, he’d be done with state supervision after five years on probation, not including registering as a sex offender for life.  But during a monthly visit to his probation officer in April, he found out about being subject to the added layer of oversight.

He said he argued that lifetime GPS monitoring wasn’t part of his sentencing agreement. Still, the device was attached April 26.  He’s still getting used to wearing it. He said the device puts his job stocking snack machines in jeopardy and that he’s too embarrassed to wear shorts in public . He said it seemed like extra punishment added after the fact.

Kim Kilgore, the St. Louis County prosecutor who handled his case, disagreed. “It’s a collateral consequence of his plea,” Kilgore said. “The legislature has spoken that, in the interest to the public, he should be required to wear this. Mind you, his victim was 7 years old.”

She said sex offenses are a public health issue and should be handled accordingly, similar to people with a contagious disease who are quarantined. “Think of the burden that my victim suffers every day of her life for something he chose to do,” she said.

Officials have tried to notify at least 432 sex offenders like the man from south St. Louis County about the new monitoring requirements, according to the Department of Corrections, which oversees the division of probation and parole.  At the end of April, 364 of them had been placed on GPS monitoring.  They were already on state supervision. About 800 prison inmates are on deck. So are 500 people who already completed their sentences and are considered free.

In the year 2000... inmates in western prisons will be getting computer tablets (and will be charged for the privilege)

For whatever strange reason, I just noticed two articles about prisoners in two states being given access to computer tablets and that led me to think of referencing in my post title an old-school Conan skit.  Silly pop-culture reference notwithstanding, here are links to the articles and a few details:

"Colorado prison inmates getting computer tablets"

Every inmate in a Colorado prison will have a computer tablet by the end of 2017. That's 18,000 tablets that inmates will be able to keep in their cell.... the tablets don't come with internet access, so no Netflix or Google.

But the tablets allow inmates to make phone calls, send emails, write grievances, communicate with jail staff, order hygiene products and view their prison bank accounts. Eventually, inmates will be able to download music and games.

Prisons also are being outfitted with monitors so inmates can have video visits with family members and friends....

Virginia-based vendor Global Tell Link is spending $800,000 to outfit Colorado prisons with video monitors and tablets. The company makes its money by charging inmates and their families for phone calls, emails, video chats, music and game downloads.

Phone calls are 12 cents per minute, emails are 25 cents each, 10-minute video calls are $4 and 25-minute video calls are $10.  All phone calls and emails are monitored by prison staff.

"Tablets coming for SD inmates"

They won’t have access to Facebook or Twitter, but every inmate in South Dakota’s prison system will soon have their own tablet computer. The touchscreen devices, connected to a closed network, will be offered for free to the Department of Corrections by telephone provider Global Tel Link.

The tablets mean longer phone calls with family and friends, and text messages – without photos or attachments – and will allow inmates to pay for access to games, music and e-books through monthly subscriptions. Phone calls and text messages will be charged per minute or per message....

South Dakota will join states like Colorado, Georgia and Indiana in its embrace of tablets for inmates, which are becoming more common through inmate telecom providers.

The Minnehaha County Jail recently added a limited number of tablets from CBM Managed Services of Sioux Falls, which inmates can check out at a $5 daily rate or borrow for 15 minutes every three hours. “This is the route a lot of these commissary vendors and video vendors are going,” said Minnehaha County Jail Warden Jeff Gromer....

The tablets offer distraction, communication and education for inmates, but they offer security benefits for staff, according to Warden Darin Young at the state penitentiary. Tablet phone calls and messages are recorded and stored for potential monitoring, and tablets can be shut off or confiscated for disciplinary reasons. Inmates who lose tablets would have to use public kiosks for calls.

The clear devices carry other security advantages, as well, Young said. Paper books can hide contraband passed from inmate to inmate, for example. "You can’t pass contraband through an e-book,” Young said.

New Jersey Supreme Court upholds polygraph exams for sex offenders under supervision

The New Jersey Supreme Court today issued a notable opinion rejecting challenges to the use of lie detector tests for sex offenders subject to parole or other community supervision. The opinion in J.B. v. New Jersey State Parole Board, No. 077235 (NJ May 8, 20107) (available here) gets started this way:

Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences pursuant to N.J.S.A. 2C:43-6.4.

The parolees are all convicted sex offenders who have been released into the community subject to monitoring by the Parole Board.  For substantially similar reasons, they object to the administration of periodic polygraph examinations, which are required under the terms of their parole.  The parolees raise constitutional claims based on the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and constitutional privacy interests.  They also contend that the Parole Board’s regulations are arbitrary and capricious.

The Appellate Division upheld the Parole Board’s use of polygraph examinations but directed the Parole Board to adopt revised regulations to explain more clearly that the machine-generated test results cannot be used as evidence to support independent criminal charges or to impose additional sanctions.

For the reasons set forth in this opinion, we affirm but modify the Appellate Division’s opinion.  We uphold the Parole Board’s use of polygraph testing with the same limitations as the Appellate Division, but add that the Parole Board’s regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination.

"Mass Monitoring"

The title of this post is the title of this notable new paper authored by Avlana Eisenberg and now available via SSRN. Here is the abstract:

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry.  Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes — a phenomenon which this Article terms “mass monitoring” — is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment.  It finds that the origins and history of EM as a progressive alternative to incarceration — a punitive sanction — support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories.  Yet new uses of EM have complicated this narrative.  The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.”  The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

The Article’s findings have crucial implications for hotly contested questions over whether monitoring can be imposed retroactively and whether pretrial house arrest plus monitoring (which resembles the post-conviction use of monitoring as a substitute for incarceration) should count toward time served.  The Article provides a framework for addressing these questions and, at the same time, offers practical policy guidance that will enable courts and policymakers to ensure that EM programs are genuinely a cost-saving, progressive substitute for incarceration rather than another destructive expansion of government control.

"Technological Incarceration and the End of the Prison Crisis"

The title of this post is the title of this notable new article now available via SSRN authored by Mirko Bagaric, Dan Hunter and Gabrielle Wolf.  Here is the abstract:

The United States imprisons more of its people than any nation on Earth, and by a considerable margin.  Criminals attract little empathy and have no political capital.  Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens.  No principled, wide-ranging solution has yet been advanced, however.  To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.

The alternative to prison that we propose involves the fusion of three technological systems.  First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined.  Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers.  Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.

The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States.  We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.

In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons.  As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly.  If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS

A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined "A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear." The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone).  Here are excerpts:

This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.

The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.

It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.

The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.

We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).

Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it....

But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time.... If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.

It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.

But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.

Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.

Some (of many) prior related posts on use of risk-assessment technologies:

• Parole precogs: computerized risk assessments impacting state parole decision-making
• Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
• Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
• Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
• ProPublica takes deep dive to idenitfy statistical biases in risk assessment software

Accounting for huge modern increase in electronic monitoring of offenders

This short new Pew issue brief provides a fascinating accounting of large modern increase in offender subject to electronic monitoring.  The title provides the essential story: "Use of Electronic Offender-Tracking Devices Expands Sharply: Number of monitored individuals more than doubled in 10 years." Here are a few excerpts:

The number of accused and convicted criminal offenders in the United States who are monitored with ankle bracelets and other electronic tracking devices rose nearly 140 percent over 10 years, according to a survey conducted in December 2015 by The Pew Charitable Trusts.  More than 125,000 people were supervised with the devices in 2015, up from 53,000 in 2005.

All 50 states, the District of Columbia, and the federal government use electronic devices to monitor the movements and activities of pretrial defendants or convicted offenders on probation or parole.  The survey counted the number of active GPS and radio-frequency (RF) units reported by the companies that manufacture and operate them, providing the most complete picture to date of the prevalence of these technologies in the nation’s criminal justice system....

Establishing the exact number of offenders under electronic supervision is difficult, given the decentralized nature of the criminal justice system. Earlier approximations have varied widely.  For example, one study estimated that more than 90,000 GPS units were in use nationwide in 2009,  while the federal Bureau of Justice Statistics reported that the figure was about 25,000 the same year.  Both studies, however, were incomplete. The former did not include a detailed methodology and did not indicate whether it counted only active monitoring devices or inactive ones as well; the latter did not count defendants on pretrial release and relied on the voluntary participation of state and local court and supervision agencies, many of which did not submit information.

To provide a more up-to-date and comprehensive picture, Pew developed a survey of the 11 companies known to manufacture, sell, or operate GPS and RF devices in the United States, including U.S. territories.  Seven of the largest companies responded, representing an estimated 96 percent of the market....

The number of accused and convicted criminal offenders monitored with electronic tracking devices in the United States increased 140 percent between 2005 and 2015, from approximately 53,000 to more than 125,000.  Extrapolating from the 96 percent market share of the companies that participated in the survey, the 2015 total probably exceeded 131,000.

The survey also shows that a sharp increase in the use of GPS technology accounted for all of the 10-year growth in electronic tracking, more than offsetting a decline in the use of RF devices.  In 2015, manufacturers reported that about 88,000 GPS units were being used for supervision of accused and convicted offenders, a thirtyfold increase from the roughly 2,900 reported a decade earlier. By contrast, the number of active RF units fell 25 percent, from more than 50,000 to below 38,000.  These findings are consistent with published studies that suggest RF devices are giving way to technology that can track offenders in real time.

Despite the substantial growth of electronic tracking during the study period, it remains relatively rare in the context of the U.S. corrections system.  Nationally, nearly 7 million people were in prison or jail or on probation or parole at the end of 2014, but individuals tracked using electronic devices in 2015 represented less than 2 percent of that total. Although some research suggests that electronic monitoring can help reduce reoffending rates, the expanded use of these technologies has occurred largely in the absence of data demonstrating their effectiveness for various types of offenders at different stages of the criminal justice process.

"The Effects of DNA Databases on the Deterrence and Detection of Offenders"

The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Jennifer Doleac, Rasmus Landersø and Anne Sofie Tegner Anker. Here is the abstract:

Countries around the world use databases of criminal offenders' DNA profiles to match known offenders with crime scene evidence.  The purpose is to ease police detection work and to increase the probability that offenders get caught if they reoffend, thereby deterring future criminal activity.  However, relatively little is known about the behavioral effects of this law enforcement tool.  We exploit a large expansion of Denmark's DNA database in 2005 to measure the effect of DNA profiling on criminal behavior.  Individuals charged after the expansion were much more likely to be added to the DNA database than similar offenders charged just before that date.

Using a regression discontinuity strategy, we find that the average effect of the DNA database is a reduction in recidivism.  By using the rich Danish register data, we further show that effects are heterogeneous across observable offender characteristics; it is mainly offenders initially charged with violent crime that are deterred from committing new crimes.  We also find that DNA profiling has a positive detection effect, increasing the probability that repeat offenders get caught.  Finally, we find evidence that DNA profiling changes non-criminal behavior: offenders added to the DNA database are more likely to get or remain married.  This is consistent with the hypothesis that, by deterring future criminal behavior, DNA profiling changes an offender’s life course for the better.

Michigan appeals court rejects "sentencing by videoconference" as a violation of state rules

As reported in this AP piece, a Michigan appeals court said a state trial court erred when sentencing Trenity Heller by video in a drug case.  Here is the background and basic details of the ruling:

The use of technology has been hailed as a great way to save money in Michigan's criminal justice system, and state rules allow video from jail for a variety of hearings, including arraignments, guilty pleas and misdemeanor sentences. "Felony sentencing is not on the list," the appeals court said in its 3-0 decision that Heller's rights were violated.

"Sentencing by video dehumanizes the defendant who participates from a jail location, unable to privately communicate with his or her counsel and likely unable to visualize all the participants in the courtroom," the court said, adding that it "clashes with the judge's duty to acknowledge the humanity of even a convicted felon."

But Smith, the only Circuit Court judge in Hillsdale, said he gives everyone a fair shake. He sees other benefits, too. "The jail is across town so we do save money and security" by using video, Smith told The Associated Press. "If they don't leave jail, then we don't have them in the courthouse and have the problems Berrien faced."

He was referring to the fatal shooting of two bailiffs Monday at the Berrien County courthouse. The sheriff said an inmate somehow got a deputy's gun while being moved between the court and jail.

Smith also said he doesn't choose a sentence depending on whether someone is standing in front of him or appearing by video. "I sentence on facts, not on emotions," the judge said.

Smith said nearly all felons at the jail have chosen video and waived their right to stand in court since he began offering a choice earlier this year.

Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?

The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments.  Here are details on how Utah is engaged in an alternative sanctions experiment:

States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime.  An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.

They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.

The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”

The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.

Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.

The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.

Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....

Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.

Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”

Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”

The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.

Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.

The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.

State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”

"'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process"

The title of this post is the title of this interesting new article available via SSRN authored by Michael Perlin and Alison Lynch. Here is the abstract:

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case.  If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice.  However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.

In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker.  Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging.  Next, we consider how the use of such evidence continues to expand in the criminal trial process.  Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence.  Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.

Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints

As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:

Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled.  A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau.  The case had been argued before the court earlier this month.

In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.

In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient.  "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."

But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation.  Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions.  "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."

The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.

New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines

As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:

The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights.  The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.

Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests.  The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole.  But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.

Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests.  Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....

A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders.  The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.

But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions.  The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."

Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes.  "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently."  Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.

The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation.  "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.

But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities."  If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."

The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.

"Free computers for inmates? It’s latest deal at Sacramento County jail"

The title of this post is the headline of this encouraging Sacramento Bee article which reinforces my long-standing belief that lots of modern technology could and should be put to good use in our not-so-modern jails and prisons.  Here are excerpts from the piece:

On the surface, the notion seems preposterous: Hand out Samsung computer tablets to dozens of Sacramento County Main Jail inmates.  But 40 of the tablets have been in use at the Main Jail downtown for two months, and officials say they have had virtually no problems. Inmates have used them to take classes toward high school diplomas, for parenting and domestic violence courses and, once they have earned enough points from studying, to watch preapproved movies or listen to music.

The project, which officials hope soon will offer 500 tablets to inmates, is similar to others that have been launched in jails nationwide and is not costing taxpayers a dime, sheriff’s Sgt. Brian Amos said.  Instead, the tablets, which cost about $200 each, are paid for through an inmate fund that collects revenues from commissary and other purchases.  “An inmate can work on their GED, they can take anger management classes,” Amos said as he stood on the fifth floor of the jail Thursday as inmates drifted toward a table holding dozens of tablets and earphones. “There’s even parenting classes. We had an inmate here during this pilot who was learning how to fix carburetors on a car or fix brakes. There’s thousands of hours of content.”

The computers cannot be used for email or be hooked up to wireless Internet, Amos said.  Instead, they can only connect with a secure network operated by a Chicago-based company called Edovo that offers the service. If someone somehow managed to hack into the system, “they’d end up at Edovo,” Amos said.

Although Amos acknowledges the notion originally worried some deputies at the jail, which houses about 2,000 inmates, the pilot program has proved to have a calming effect on inmates who have been given access to the devices.  On two visits last week to the day room where the devices are being used, there was something present that is entirely out of the ordinary for the cacophonous jailhouse: silence.

Jason Rogers, 43, who has been in the jail for eight months on drug charges, sat with one of the tablets studying a chapter book and taking notes on a pad. “I think it’s great,” Rogers said, adding that he has used the device to study current events, such as the ongoing war in Syria, or to watch movies.  Without access to a tablet, Rogers said, he’d most likely be writing letters or watching television in the day room.

Steve Wilson, 52, who is awaiting the results of an appeal on a federal white-collar crime case, said he uses the devices to listen to TED talks and watch documentaries. In a previous stint at the jail while awaiting trial, Wilson said disputes among bored inmates were common. “At least twice a week, when those doors popped open, there was a fight,” Wilson said. “Now that I’m back I haven’t seen a fight yet. People are taking their issues and instead of taking it out on each other, they have a mechanism of escape where they can bury themselves into that. And there’s going to be more, there’s going to be games, there’s going to be magazines.”

The tablets, which officials say can also be used to eliminate paperwork by allowing inmates to request medical care or to read up on jail policies and procedures, are designed so they cannot be altered to allow communication with the outside.  “You’d have to be a genius to figure out how to do that,” Rogers said. The seven-inch tablets cannot be taken into cells, and must be locked in a charging cart at night.

Deputy Brent Snyder, who was watching over inmates on Wednesday, said he was skeptical when he heard inmates would be given access to the small computers, noting that he wanted assurances they could not access the Internet or communicate outside the jail.  Since then, Snyder said, he has been won over by the program and the effect it has had on inmates.  They are calmer, quieter and eager to use them to study and to listen to music ... and officials say they do not expect any serious violations because the inmates do not want to lose their access to the devices.

Edovo and its tablet programs are the brainchild of Sacramento native Brian Hill, a 2002 Del Campo High School graduate who says his company has about 1,000 tablets in fewer than 10 facilities nationwide, but expects to more than double that in the coming year.  As prisons and jails try to focus more on reform than simply punishment, the need for programs that can be made available to inmates is greater than ever, Hill said, and the use of tablets can help. “You’ve got 2 million people behind bars in the nation watching daytime television,” Hill said.  “That’s not a recipe for success.  With this, there’s a window, there’s a chance for success.”...

The tablets are encased in hard plastic that protects them and prevents them from being opened by inmates.  And, Hill said, if someone smuggled a cellphone or other device into the jail and hacked into the secure system, they would only gain access to the coursework Edovo offers. “It’d be the most depressing hack ever,” he said.  Hill acknowledged that there is hesitation from some — especially guards — when they first hear about the program.  “It generally takes about five minutes,” Hill said.  “The minute you see it live and 100 inmates put on headphones and they are quiet for six hours, it really changes people’s perspectives.”

Such programs have been put into use from San Francisco to Pennsylvania using iPads and other tablets and are generating a surprisingly positive response from some.  “It’s a good thing,” said Christine Ward, executive director of the Crime Victims Assistance Network Foundation in Sacramento.  “I know you don’t often hear that from me.”  But, Ward said, as long as inmates are being held accountable for their crimes, it is important for institutions to offer prisoners the ability to improve and educate themselves.

Encouraging DUI alternative sentencing story from South Dakota

The AP this past week had this encouraging story about an alternative approach to drunk driving offenses headlined "States encouraged to mull South Dakota sobriety program." Here are excerpts:

Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn't been drinking.  After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids....

South Dakota's 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].

The program offers those accused or convicted of an alcohol-related crime an alternative to jail.  The provision in the highway law, pushed by U.S. Sen. John Thune, creates an incentive grant totaling about $18 million over four years for states that implement the sobriety program.

It's akin to existing funds for states that have adopted seatbelt requirements or ignition interlock laws.  "This will give other states a chance to find out if it works as well," said U.S. Sen. Mike Rounds, who was South Dakota governor when the program began.  The new transportation law also allows states that implement a 24-7 program to avoid a penalty that routes construction funds to highway safety.

An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota's program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years.  "These are large reductions when you consider that we're talking about the community level," said Beau Kilmer, who conducted the study and continues to research the program.

Experts say incentive grants are an effective way to encourage states.  "When it's a federal law, the word spreads and other communities that are looking for solutions find out about it, so they're much more likely to adopt it themselves," said safety advocate Joan Claybrook, a former National Highway Traffic Safety Administration chief.

South Dakota started the practice in 2005.  Participants come to a site each morning and evening to blow into an alcohol breath test.  Those who live farther away or who have difficulty remaining sober wear alcohol-monitoring bracelets or have ignition interlock systems in their vehicles.  Over the past decade, nearly 40,000 people have participated in South Dakota's twice-daily program, compiling a pass rate of more than 99 percent.

North Dakota and Montana have started similar monitoring systems, and more states are running or planning pilot programs. South Dakota's attorney general, Marty Jackley, has also discussed the program with his counterparts in other states.  And West Virginia Attorney General Patrick Morrisey said South Dakota's "very positive" results warrant examination by his state, where a program would require legislative support.

"Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention"

The title of this post is the title of this interesting-sounding paper available via SSRN authored by Adam Shniderman and Lauren Solberg. Here is the abstract:

Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime.  A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system.

For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population.  Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders.  However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention.  This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism.

"Automatic Justice? Technology, Crime and Social Control"

The title of this post is the title of this intriguing new paper authored by Amber Marks, Ben Bowling and Colman Keenan. Here is the abstract:

This paper examines how forensic science and technology are reshaping crime investigation, prosecution and the administration of criminal justice.  It illustrates the profound effect of new scientific techniques, data collection devices and mathematical analytical procedures on the traditional criminal justice system.  These blur the boundary between the innocent person, the suspect, the accused and the convicted.  They also blur the boundary between evidence collection, testing its veracity and probative value, the adjudication of guilt and punishment.  The entire process is being automated and temporally and procedurally compressed.  At the same time, the start and finish of the criminal justice process are now indefinite and indistinct as a result of the introduction of mass surveillance and the erosion against ‘double jeopardy’ protections caused by scientific advances that make it possible to revisit conclusions reached in the distant past.

This, we argue, indicates a move towards a system of ‘automatic justice’ that is mediated by technology in ways that minimise human agency and undercuts the due process safeguards built into the traditional criminal justice model.  The paper concludes that in order to re-balance the relationship between state and citizen in an automatic criminal justice system, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law which are now highly relevant to criminal justice.

"Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In Jail"

The title of this post is the headline of this effective lengthy article from International Business Times discussing the intersection of modern technocorrections and modern criminal justice economics. Here are excerpts:

In Richland County, South Carolina, any person ordered to wear the ankle monitor as a condition of their bail must lease the bracelet from a private, for-profit company called Offender Management Services (OMS), which charges the offender $9.25 per day, or about $300 per month, plus a $179.50 set-up fee, according to county documents obtained through a Freedom of Information Act request made by International Business Times.

This arrangement reflects an opportunistic pitch by prison-oriented technology companies that has found favor with budget-minded government officials.  In effect, companies like OMS have allowed municipalities like Richland County to save the costs of monitoring offenders by having the offenders pay themselves.  The county wins, the company wins and people like Green find themselves confronting additional drains on their limited means.

In Richland County, if offenders don’t -- or simply can’t -- meet their payments, the company is obliged to contact police in order to "return [the offender] to the custody of the [Richland County] Detention Center,” a public facility.  In other words, if you can't pay your electronic monitoring bill, you get sent back to jail.

“The electronic monitoring people are like old-fashioned bounty hunters,” says Jack Duncan, a public defender in Richland County, who says some of his clients have been locked up because they can’t make their payments.  “It’s a newfangled debtors' prison. People are pleading guilty because it’s cheaper to be on probation than it is to be on electronic monitoring.”

Richland County is far from the only county in the United States that requires people to pay for their own tracking. In the last decade, “offender-funded” electronic monitoring programs -- as they’re known in the business -- have exploded in popularity.

States like Georgia, Arkansas, Colorado, Washington and Pennsylvania now contract with private, for-profit companies that require individuals to pay for their own tracking, according to analysis of county and state records by IBT.  While there is no centralized database on how often states charge defendants for their tracking, from 2000 to 2014 the use of electronic monitoring as alternative to jail detention grew by 32 percent, according to figures provided by the Bureau of Justice Statistics in a 2014 annual survey of jails. In 2014, NPR conducted a survey that found that in "all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring."  One industry report now pegs the number of people under electronic monitoring in the United States at 100,000, and that number likely will grow.

Companies routinely use lobbyists -- especially at state and local jurisdictions -- to establish relationships with officials from local corrections departments. The country’s largest private corrections company, GEO Group, spent $2.5 million in lobbying dollars in 2014, in part for its electronic monitoring efforts, according to company statements. In a nod to the high value of local relationships, GEO noted in company documents that “approximately $0.3 million was for lobbying at the Federal level and approximately $2.2 million was for lobbying at the state and local levels.”...

As government agencies look to decrease the financial burden of keeping so many people locked up, the electronic monitoring business appears poised for growth.  SuperCom, an Israeli software provider, predicts the industry will balloon to $6 billion in annual revenues by 2018, largely from offender-funded programs.

Clearly, the business is good for businesses and cheaper on taxpayers. But is it fair to charge individuals for their own electronic tracking?  Several lawyers interviewed for this story say absolutely not, even though it routinely happens. “The business model itself is blatantly illegal,” said Alec Karakatsanis, a lawyer and the co-founder of Equal Justice Under Law, a nonprofit civil rights organization. “If it were ever challenged in court, it would be struck down immediately.” Cherise Burdeen, executive director of the Pretrial Justice Institute, agreed, saying that “charging of offenders for their supervision conditions, whether that’s electronic monitoring -- all of that is unconstitutional and illegal.” Jack Duncan, the public defender, simply contends that electronic monitoring is “a legal monstrosity.”...

The electronic monitoring pitch is appealing to state and county governments. For example, Behavioral Inc., one of the largest electronic monitoring companies now owned by the private prison behemoth GEO Group, boasts in marketing materials that in Luzerne County, Pennsylvania, offender-funded electronic monitoring “has saved the county ... more than $40 million in jail bed costs by diverting offenders to community supervision.”

In some states, counties don’t only save money by contracting out the monitoring to private companies -- they actually make money from it.  For instance, in Mountlake Terrace, a suburb north of Seattle, the city contracts with a small electronic monitoring company, which charges the the town $5.75 “per client.”  However, the person placed on electronic monitoring actually pays the city $20 per day, resulting in a net revenue for the city of “approximately $50,000 to $60,000” per year, according to Mountlake Terrace county documents.

“We’re at peak incarceration as a society,” says Karakatsanis. “A lot of these companies are devoting extraordinary efforts to shift their business model and profit off of that growing surveillance and supervision.”...

Like many industries, businesses compete for contracts with a mix of lobbying, marketing and old-fashioned schmoozing. Companies routinely pitch their products' services at trade shows and conferences around the country. “You go to the National Association of Pretrial Services Conference, or the American Parole and Probation Association, and in the vendor room is all this technology for tracking,” says Cherise Burdeen. “They portray it as a great technology, and they tell all these county folks, “This doesn’t cost you anything; the defendant pays for it all!”

Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing

This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:

Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.

Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.

Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.

Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.

The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”

The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.

The referenced appellate court certification opinion is available at this link, and it begins this way:

We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.

"Is It Ethical to Chemically Castrate a Child Sex Offender?"

The question in the title of this post is the headline of this RYOT piece discussing an alternative sentencing debate afoot in Australia.  Here is how the piece gets started (with links from the original):

When it comes to its convicted child sex offenders, Australia is considering nipping the problem in the bud, literally.  The country may soon require perpetrators to be chemically castrated instead of sent to prison, VICE News reports.

New South Wales’ justice minister, Troy Grant, would like the treatment to be made mandatory since the rate of recidivism for sex offenders is so high, according to the Australian Broadcasting Corporation.  About 17 percent are arrested for a similar crime within two years of being released from prison.  Currently, sex criminals can volunteer for treatment, but are not required to undergo it.

Child sexual abuse runs rampant in Australia.  Thirty percent of the population reports having fallen victim to it in their lifetime, 10 percent of whom say the abuse was “severe,” a report by the Australian Institute of Criminology found.

Anti-libidinal treatment is nothing new.  In fact, courts in Western Australia and Victoria can already mandate libido-reduction treatment to convicts who have been deemed dangerous by prison standards.

In the US, child sex offenders could potentially be sentenced to life in prison; many opt to undergo anti-libidinal treatment instead of extended prison stays, especially since even after sex-offending convicts are released, at least seven states mandate they remain in confinement.

Compared to other offenses, recidivism rates for sex criminals in America are not as high. Only about 5 percent are sent back to prison within three years for a similar crime. Yet states such as Iowa, Florida and California can require sex offenders to be administered libido-eliminating treatment.

Sex offenders may not be a particularly sympathetic group since they pose a serious threat to the most vulnerable members of society, children. Still, many feel chemical castration goes too far.  

Both Amnesty International and the American Civil Liberties Union in the US have condemned the practice, calling it inhumane.  “At first sight, forced chemical castration could be taken as a matter-of-course decision; however, it is incompatible with human rights, which are the foundation of any civilized democratic society,” read a statement by Amnesty International in March 2012.

In addition to the controversy around forcing people to take drugs they may not want in their bodies, the drugs used for chemical castration don’t come without their fair share of side effects, namely symptoms mimicking menopause in women.

Could brain implants "make the death penalty obsolete"?

The technocorrections question in the title of this post is drawn from this intriguing Motherboard article authored by futurist Zoltan Istvan, headlined "How Brain Implants (and Other Technology) Could Make the Death Penalty Obsolete."  For those who believe (as I do) that technology could well become the most important (and mist disruptive) force in how we look at crime and punishment, this full piece is a must-read (and I am very grateful to the reader who sent this my way).  Here are excerpts:

The death penalty is one of America’s most contentious issues.  Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them).  Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims....

Regardless of the debate — which shows no signs of easing as we head into the 2016 elections — I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.

For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors.  Those implants will be able to control out-of-control tempers and violent actions — and maybe even unsavory thoughts.  This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?

Recently, the commercially available Thync device made headlines for being able to alter our moods.  Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy.  So the technology to change behavior and alter the brain isn’t science fiction.  The science, in some ways, is already here — and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA, partially for cranial implant research.

Some people may complain that implants are too invasive and extreme.  But similar outcomes — especially in altering criminal’s minds to better fit society’s goals — may be accomplished by genetic engineering, nanotechnology, or even super drugs.  In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them.  After all, some people — including myself — believe much violent crime is a version of mental disease.

With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals — in other words, a lobotomy.  Because I want to believe in the good of human beings, and I also think all human existence has some value, I’m on the lookout for ways to preserve life and maximize its usefulness in society.... 

Speaking of extreme surveillance — that rapidly growing field of technology also presents near-term alternatives for criminals on death row that might be considered sufficient punishment.  We could permanently track and monitor death row criminals. And we could have an ankle brace (or implant) that releases a powerful tranquilizer if violent behavior is reported or attempted.

Surveillance and tracking of criminals would be expensive to monitor, but perhaps in five to 10 years time basic computer recognition programs in charge of drones might be able to do the surveillance affordably.  In fact, it might be cheapest just to have a robot follow a violent criminal around all the time, another technology that also should be here in less than a decade’s time.  Violent criminals could, for example, only travel in driverless cars approved and monitored by local police, and they’d always be accompanied by some drone or robot caretaker.

Regardless, in the future, it’s going to be hard to do anything wrong anyway without being caught.  Satellites, street cameras, drones, and the public with their smartphone cameras (and in 20 years time their bionic eyes) will capture everything.  Simply put, physical crimes will be much harder to commit.  And if people knew they were going to be caught, crime would drop noticeably.  In fact, I surmise in the future, violent criminals will be caught far more frequently than now, especially if we have some type of trauma alert implant in people — a device that alerts authorities when someone’s brain is signaling great trouble or trauma (such as a victim of a mugging).

Inevitably, the future of crime will change because of technology.  Therefore, we should also consider changing our views on the death penalty.  The rehabilitation of criminals via coming radical technology, as well as my optimism for finding the good in people, has swayed me to gently come out publicly against the death penalty.

Whatever happens, we shouldn’t continue to spend billions of dollars of tax payer money to keep so many criminals in jail.  The US prison system costs four times the entire public education system in America.  To me, this financial fact is one of the greatest ongoing tragedies of American economics and society.  We should use science and technology to rehabilitate and make criminals contribute positively to American life — then they may not be criminals anymore, but citizens adding to a brighter future for all of us.

In aftermath of prison escape, NY legislator suggests microchip tracking implants for violent offenders

As reported in this local piece, headlined "N.Y. State Senator Proposes Using GPS Implants To Track Violent Convicts," a high-profile prison escape has now prompted a high-tech proposed solution to prison escapes. Here are the details:

Bloodhounds and expensive manhunts are so yesterday when it comes to hunting escaped prisoners. That’s the opinion of one lawmaker, who says the state should explore implanting tiny GPS devices under convicts’ skin. Others say microchipping criminals could have multiple uses, CBS2’s Marcia Kramer reported Tuesday.

“If you’ve got convicted murderers, the type of people these two men are, that it would make some good sense at that level that we should have something that we could track them,” said State Sen. Kathy Marchione, R-Saratoga.  With 800 law enforcement officials still unable to pick up the trail of escaped murderers Richard Matt and David Sweat, the suggestion from Marchione to implant microchips in people convicted of serious crimes is picking up steam.

“I’m in favor of it, but I do think there have to parameters with respect to the crime itself.  I wouldn’t do it for arson, which falls under the violent, but I would do it for aggravated rape and murder,” said Paul Viollis, a security expert and former investigator in the Manhattan District Attorney’s Office.  “I see the public safety value in it, not just from an escape standpoint but also from an inmate-control perspective within the institution,” said Jon Shane, a professor at John Jay College.

The New York Civil Liberties Union said microchipping inmates is unconstitutional. “It sounds like a knee-jerk reaction.  They should plug the security inside prisons,” said NYCLU Executive Director Donna Lieberman.  “As a constitutional matter, it won’t survive a challenge because it’s an invasion of body autonomy.”

Shane, a former cop, said it might pass constitutional muster if the chip was removed if and when a prisoner is released.  “Removing it when they are paroled, those sorts of things, transitioning from a microchip to an ankle monitor, are all going to have to be explored,” Shane said.

There’s also the question of whether the microchip could be cut out the minute the inmate escaped.  Experts say the chips would be embedded in the neck, underneath six or seven layers of skin.  So simply cutting it out without medical assistance would pose a significant health risk, Kramer reported.

I tend to favor at least the considerationof new technologies and technocorrections, so I personally would endorse this kind of innovation. I would especially endorse this kind of technocorrections if it might provide a ready means to give better-behaving prisoners more freedom and liberty while they are imprisoned without crating any risks to general public safety.

"Expunging America's Rap Sheet in the Information Age"

The title of this post is the title of this notable new paper by Jenny Roberts now available via SSRN. Here is the abstract:

As the Wall Street Journal recently put it, “America has a rap sheet.”  Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line.  At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life.  The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.

States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered.  The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age.  Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record.  The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.

This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.

Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity

Today's New York Times has this lengthy discussion of a digital development in modern sentencing proceedings.  The piece is headlined "Defendants Using Biographical Videos to Show Judges Another Side at Sentencing," and here are excerpts:

Lawyers are beginning to submit biographical videos at sentencings, and proponents say they could transform the process. Defendants and their lawyers already are able to address the court before a sentence is imposed, but the videos are adding a new dimension to the punishment phase of a prosecution. Judges “never knew the totality of the defendant” before seeing these videos, said Raj Jayadev, one of the people making the[se videos].... “All they knew was the case file.”

Yet as videos gain ground, there is concern that a divide between rich and poor defendants will widen — that camera crews and film editors will become part of the best defense money can buy, unavailable to most people facing charges.  Videos, especially well­produced ones, can be powerful.  In December, lawyers for Sant Singh Chatwal, a millionaire hotelier who pleaded guilty in Federal District Court in Brooklyn to illegal campaign donations, submitted a 14­minute video as part of his sentencing.  Elegantly produced, it showed workers, family members and beneficiaries of Mr. Chatwal describing his generosity.

As he prepared to sentence Mr. Chatwal, Judge I. Leo Glasser said he had watched the video twice, including once the night before.  The judge, echoing some of the themes in the video, recounted Mr. Chatwal’s good works.  Judge Glasser then sentenced Mr. Chatwal to probation, much less than the approximately four to five years in prison that prosecutors had requested.

Yet efforts like those on behalf of Mr. Chatwal are hardly standard.  While every criminal defendant is entitled to a lawyer, a day in any court makes it clear that many poor people do not receive a rack­-up-­the-­hours, fight-­tooth-and-­nail defense like Mr. Chatwal did.

Even in cities with robust public defense programs, like New York City, lawyers may be carrying as many as 100 cases at once, and they say there is little room to add shooting and editing videos to their schedules.  “It’s hard for me to imagine that public defenders could possibly spare the time to do that,” said Josh Saunders, who until recently was a senior staff attorney at Brooklyn Defender Services, adding that lawyers there are often physically in court for the entire workday.  He sees the humanizing potential of videos, he said, but “I would also be concerned that defendants with means would be able to put together a really nice package that my clients generally would not be able to.”

Mr. Jayadev’s nonprofit, Silicon Valley De­Bug, a criminal justice group and community center in San Jose, Calif., believes that videos are a new frontier in helping poor defendants, and is not only making videos but encouraging defense attorneys nationwide to do the same.  The group has made about 20 biographical videos for defendants, one featuring footage of the parking lot where a homeless teenage defendant grew up.  With a $30,000 grant from the Open Society Foundation, De­Bug is now training public defenders around the country....

LaDoris H. Cordell, a former state court judge in Santa Clara County who is now the independent police auditor in San Jose and who has seen some of Mr. Jayadev’s videos, said she would like them to be used more widely at sentencings.

“I’m very wary, and I was as a judge, of the double standard,” where wealthy defendants can afford resources that poorer defendants cannot, she said. “It is a problem, and what Raj is doing, these videos, is something that should be available to anyone who needs to have it done.” A prosecution, she said, is “usually is a one­sided process, and now it’s like the scales are being balanced out.

"Are video visits a smart innovation for jails — or yet another way to exploit families?"

The title of this post is the title of this notable lengthy new Quartz piece. Here are excerpts:

To visit her son in jail in the suburbs of Austin, Texas, Barbara Brutschy would get on a plane and fly 1,700 miles from her home in Oregon.  She would arrive at the jail, go through security checks, including metal detectors, all airport-style.  An hour later, she would sit down in a booth, wait, and after a couple of minutes her son, Richard Fisk, would appear — on a video screen.

Video visitation, as it’s called, is the latest innovation in America’s jails.  Hundreds of jails have introduced on- and off-site video visitation since it became widely available two-to-three years ago.  (In 95 known cases, jails are using it to replace in-person visits altogether.)  Jail authorities say it’s more secure, less costly to supervise, and better for inmates too, as it allows jails to extend visiting hours.  Prisoner advocates, once optimistic about its potential, now see something more sinister: A financially-squeezed jail system and a handful of private communications companies creating an environment where inmates are exploited, often at considerable financial and emotional cost....

Twelve million people pass through the US jail system each year, most of them in pre-trial detention or serving short terms.  Jails are run by counties, while prisons, where inmates serve longer sentences, are managed by state and federal authorities.  Video visitation is much more commonly used in jails reported advocacy group Prison Policy Initiative.

“The whole purpose of video visitation was to cut down on man hours and the movement inside the jail of our inmates,” said Charlie Littleton, chief deputy sheriff at Bastrop County, Texas, which introduced video visitation and banned face-to-face in November 2014.

Jail authorities commonly say they cut labor costs when guards do not have to escort prisoners from their cells to the visiting room.  It’s unclear exactly how much the jails are saving.  When asked about whether they had calculated their savings over the course of the ban, Littleton said they hadn’t “run the figures”.

Another benefit that’s touted is increased safety through a reduction of contraband and violent incidents.  But because visits in county jails often occur through glass — the kind you see in movies, where the inmate sits on one side of the partition and the visitor on the other, with phone receivers on both ends — how video visits promote safety is not apparent.  In fact, records from Travis County showed an overall increase in infractions and contraband after banning face-to-face visitation.

Authorities say that installing video systems makes it easier for families to visit.  That’s how the systems are marketed as well.  “By leveraging the technology, facilities are able to provide far more hours of operation for visits for friends and family,” Tim Eickhoff, a vice president at GTL told Quartz.

But those extended hours can come with a catch, prisoners and their families have found. In some cases, the frequency of free on-site visits has been curtailed, forcing families to use paid off-site services to communicate....

The financial cost to prisoners and their families of video calls can be considerable. A Securus video call can cost as much as $1.50 per minute–all of which falls on the outside caller.  That means a 20-minute video call can cost as much as $30 — for a service not very different from Skype or Google Hangouts, that most of us in the outside world use for free. Some companies also add a flat service charge, further hiking up the fees.  In Buchanan County, Missouri, the fee to simply deposit money into your TurnKey Corrections phone account is $8.95....

Starting in 2013, the Federal Communications Commission initiated efforts to limit how much prisons could charge inmates for phone calls, amid public outrage at reports of exorbitant costs. One 15-minute phone call, operated by a private communications company, can cost as much as $12.95 (paywall).  But while the commission is beginning to impose caps on costs of phone calls, it did not extend the limits to video visits. (It has “sought comment on the matter” a spokesperson for the FCC tells Quartz.)

“Video visitation is absolutely unregulated. Phones are beginning to be regulated, and I think that most people in the field see video visitation as a way to skirt around that regulation,” says Josh Gravens of advocacy group Texas CURE. The cost is too much, he says, for the quality of the call. “In this day and time, we have such a technological advantage. It’s not even justifiable.”

Private communications companies typically add sweeteners to encourage jails to sign up for their services. These can include the free installation of the systems, as well as significant commissions to the jails for each video call ranging from less than 1% to half of what an inmate is charged, and even 63% in one case, found the PPI report. For jails, the sweeteners, along with the savings they anticipate, can offer a way to bolster their cash-strapped budgets. As Ann Jacobs, director of the Prison Reentry Institute at the John Jay College of Criminal Justice in New York noted, although jail budgets have grown along with the prison population, that growth has only been enough to accommodate basic needs of the facilities. “Correctional authorities are encouraged to get creative where to find profit.”...

Video visits exact an emotional as well as financial toll on inmates and their families. Jail sentences are relatively short, but some inmates linger in pre-trial detention for as long as six years. Research maintains that the best kind of meeting for inmates is a contact visit, the kind that is offered in state prisons. Studies have repeatedly proven that touch helps with creating social bonds, reducing stress, and increasing trust.

Placing a camera and screens between inmate and visitor eliminates some of the advantages of a visit. “They’re probably less than 500 feet away from you and you feel like they’re still in another state,” said Fisk. Just like with a Skype or FaceTime connection, you can’t maintain eye contact on a video call, because you spend most of your time looking at the screen, not at the camera. “You can never look someone in the eye. It’s impossible.”

Some prior related posts:

• NY Times debates "Visiting Prisoners, Without Visiting Prison"
• New report examines value of video visitation for kids of incarcerated
• "Louisiana prisons expand inmate medical care through video conferencing"
• Prison videoconference visitation program expanding in New York
• Might all video visitation companies be eager to have prisons and jail prohibit in-person visitation?
• "The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"

New problems with drones smuggling contraband in to prisons

This New York Times article would perhaps be amusing if it were not so disconcerting.  The headline is is "Illegal Air Mail for Prisoners, via Drones," and here are excerpts:

During the graveyard shift at 1:44 a.m., security cameras at the prison here picked up the blinking lights of an unidentified flying object approaching the facility’s fence. A corrections officer was dispatched to investigate, but by the time she got there, all she could see was a man running away into the dense forest that surrounds the prison.

It was not until dawn that officers found a package that included a cellphone, tobacco and marijuana tangled in the power lines outside the prison and a small drone that had crashed in the bushes nearby. In the woods, investigators located a makeshift campground, the remote control device used to fly the drone, a bottle of grape­flavored Gatorade and drugs.

“It was a delivery system,” said Bryan P. Stirling, the director of the South Carolina Department of Corrections, explaining how the drone’s operators had planned to send the contraband into the prison, the Lee Correctional Institution. “They were sending in smaller amounts in repeated trips. They would put it on there, they would deliver it, someone inside would get it somehow, and they would send it back out and send more in.”

It is the high­-tech version of smuggling a file into a prison in a birthday cake, and it underscores the headache that drones are now creating for law enforcement and national security officials, who acknowledge that they have few, if any, ways of stopping them.

Drones flying over prison walls may not be the chief concern of corrections officials. But they say that some would­be smugglers are experimenting with the technique as an alternative to established methods like paying off officers, hiding contraband in incoming laundry and throwing packages disguised as rocks over fences into recreational yards.

The authorities have detected at least three similar attempts at corrections facilities in the United States in the past two years. In the same period, there were also at least four reported attempts abroad, in Ireland, Britain, Australia and Canada.

"Trending Now: The Use of Social Media Websites in Public Shaming Punishments"

The title of this post is the title of this intriguing new piece authored by Lauren Michelle Goldman now available via SSRN. Here is the abstract:

This Note proposes that a social media shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers.  Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development.  Section III discusses the Ninth Circuit’s recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media.

Section IV outlines the current scholarly debate surrounding the use of public shaming punishments.  Section V gives an overview of the presence of social media and Internet usage in today’s society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories.  Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary’s already expansive list of sentencing options, but with some limitations and guidelines.

"Monitoring Youth: The Collision of Rights and Rehabilitation"

The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime.  In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals.  But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness.  Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.

This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts.  After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.

Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny.  The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits.  This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.

Ohio prison officials decide security drones are not (yet) cost effective

As reported in this local piece, headlined "Prisons no longer testing security drones," Ohio's prison guards do not quite yet have worry excessively about being replaced by technology. Here is why:

The Ohio Department of Rehabilitation and Correction has put a stop to drone testing at the Lebanon and Warren prison sites. Late last year, officials announced they were testing drones, an unmanned aerial system equipped with cameras, on the grounds of the two prisons.  The drones, state leaders hoped, would be a new security model for the state prisons system.

But that testing stopped in December, shortly after it started, this newspaper has learned. A $170,000 aerostat, a balloon-shaped drone equipped with both day and night cameras, was tested on prison grounds in October but officials quickly learned the cameras were not strong enough for the prisons’ security needs, said Ed Voorhies, the managing director of Ohio’s prisons.

Voorhies said state officials decided buying the aerostat wouldn’t be a good investment of taxpayer dollars.  “They’re going to go back to the table and discuss some potential solutions,” he said....

Drones at Ohio’s prisons are still a possibility, Voorhies said, but other security measures will likely be considered, too. “We are looking at technological solutions to augment our existing security,” Voorhies said.

A spokesman for Wright Patterson Air Force Base confirmed researchers are working with state officials but said the work is in “the earliest conceptual stages” and declined to comment further. State prison officials want to step up security cameras placed outside of the prison walls so less contraband — drugs, cellphones and cigarettes, for example — is smuggled into the prison, to prevent inmates from escaping, and to better analyze how fights start between inmates on the grounds, Voorhies said.  In 2013, for example, corrections officers caught nearly 500 cellphones smuggled into the prison.

Ohio became the first known prison system to begin testing drones in October. The testing began just a month after notorious Ohio school shooting killer T.J. Lane and two others escaped from the Allen Oakwood Correctional Institution in Lima.

Voorhies said the two prisons — which sit next to one another and are located in Warren County — will continue to be testing grounds for any new security models introduced. That’s because the state is able to test security for two prisons at once and because the prisons are so closely located to the Air Force Research Lab.

Prior related posts:

• Why those who follow sentencing and corrections reform should be following drones
• South Korea rolls out new robot prison guard

How Texas prisons struggling with cost concerns innovate with telemedicine

This Dallas Morning News article, headlined "Texas prisons try telemedicine to curb spending," highlights how the Lone Star State and other states struggle to cope with the increased cost of an aging prison population.  Here are excerpts:

Christopher Aldridge walks into the clinic, hops onto the edge of the examination table and greets his doctor.... It sounds like a routine medical visit — but patient and doctor are not in the same room or even in the same city. The doctor is in a clinic in Galveston, and Aldridge, an inmate at the Estelle prison in Huntsville, is 135 miles away in the prison clinic, talking to the doctor on a TV screen.

The high-tech medical consultation, known as telemedicine, uses technology to connect prisoners, who are often housed in remote areas, with medical experts throughout the state. It’s just one way that the Texas Department of Criminal Justice is trying to control spending on prison health care.  But while telemedicine has shown some success in curbing spending, it hasn’t been enough to stem rising costs due to an aging prison population.

From 2001 to 2008, the cost of providing health care per inmate increased nationally by an average of 28 percent, according to a 2013 report by the Pew Charitable Trusts that examined cost data from 44 states. During that period, Texas and Illinois were the only states to see a reduction in spending. Texas reduced the cost of health care per inmate by 12 percent while Illinois saw a 3 percent decrease.

But that trend has changed in recent years. From 2007 to 2011, Texas prisons have seen a 24 percent increase in health care spending per inmate, according to a more recent study by the Pew Research Center. The July 2014 report looked at cost data for 50 states and found spending increased by an average of 10 percent....

Prison health care is expensive. It cost $7.7 billion to provide health care to U.S. prisoners out of an overall $38.6 billion spent on corrections in 2011, according to the Bureau of Justice Statistics. More than $581 million was spent on health care for Texas’ 152,841 prisoners in 2011.

Texas is trying to lower that cost by subcontracting prison health care to the University of Texas Medical Branch and Texas Tech University. The partnership reduces medication costs through a federal program and uses cost-saving technology such as telemedicine....

But critics argue that telemedicine isn’t the way to save money in a system plagued with long-standing concerns of poor medical care. The Texas Civil Rights Project has filed dozens of lawsuits against the Texas Department of Criminal Justice and its medical contractors citing medical negligence.  Wayne Krause Yang, the project’s legal director, is concerned that telemedicine could shortchange an already vulnerable population....

Telemedicine saved the Texas Department of Criminal Justice $780 million from 1994 to 2008.  Those savings are set to increase as the number of telemedicine consultations rises. About 100,000 telemedicine encounters take place in Texas state prisons each year....

But a steady increase in the number of older prisoners is stretching the prison health budget. Costs for their medical care are two to three times higher than for younger prisoners....

While some states begin to enroll inmates in health insurance under the new Medicaid expansion part of the Affordable Care Act — an option not available to prisoners in Texas — others look to Texas for cues on expanding telemedicine and accessing federal drug pricing programs.

"Smart Guns Save Lives. So Where Are They?"

The question in the title of this post is one that long-time readers know I have been asking on this blog for nearly a decade.  Today the question also serves as the headline for this Nicholas Kristof op-ed in the New York Times.  Here are excerpts: 

About 20 children and teenagers are shot daily in the United States, according to a study by the journal Pediatrics. Indeed, guns kill more preschool-­age children (about 80 a year) than police officers (about 50), according to the F.B.I. and the Centers for Disease Control and Prevention.

This toll is utterly unnecessary, for the technology to make childproof guns goes back more than a century. Beginning in the 1880s, Smith & Wesson (whose gun was used in the Walmart killing) actually sold childproof handguns that required a lever to be depressed as the trigger was pulled.  “No ordinary child under 8 years of age can possibly discharge it,” Smith & Wesson boasted at the time, and it sold half-­a-­million of these guns, but, today, it no longer offers that childproof option.

Doesn’t it seem odd that your cellphone can be set up to require a PIN or a fingerprint, but there’s no such option for a gun?  Which brings us to Kai Kloepfer, a lanky 17­year­old high school senior in Boulder, Colo. After the cinema shooting in nearby Aurora, Kloepfer decided that for a science fair project he would engineer a “smart gun” that could be fired only by an authorized user....

Kloepfer designed a smart handgun that fires only when a finger it recognizes is on the grip. More than 1,000 fingerprints can be authorized per gun, and Kloepfer says the sensor is 99.999 percent accurate.  A child can’t fire the gun.  Neither can a thief — important here in a country in which more than 150,000 guns are stolen annually.

Kloepfer’s design won a grand prize in the Intel International Science and Engineering Fair. Then he won a $50,000 grant from the Smart Tech Challenges Foundation to refine the technology.  By the time he enters college in the fall (he applied early to Stanford and has been deferred), he hopes to be ready to license the technology to a manufacturer.

There are other approaches to smart guns.  The best known, the Armatix iP1, made by a German company and available in the United States through a complicated online procedure, can be fired only if the shooter is wearing a companion wristwatch.

The National Rifle Association seems set against smart guns, apparently fearing that they might become mandatory.  One problem has been an unfortunate 2002 New Jersey law stipulating that three years after smart guns are available anywhere in the United States, only smart guns can be sold in the state.  The attorney general’s office there ruled recently that the Armatix smart gun would not trigger the law, but the provision has still led gun enthusiasts to bully dealers to keep smart guns off the market everywhere in the U.S.

Opponents of smart guns say that they aren’t fully reliable.  Some, including Kloepfer’s, will need batteries to be recharged once a year or so.  Still, if Veronica Rutledge had had one in her purse in that Idaho Walmart, her son wouldn’t have been able to shoot and kill her.

“Smart guns are going to save lives,” says Stephen Teret, a gun expert at the Johns Hopkins Bloomberg School of Public Health. “They’re not going to save all lives, but why wouldn’t we want to make guns as safe a consumer product as possible?”  David Hemenway, a public health expert at Harvard, says that the way forward is for police departments or the military to buy smart guns, creating a market and proving they work....

Smart guns aren’t a panacea.  But when even a 17­year­old kid can come up with a safer gun, why should the gun lobby be so hostile to the option of purchasing one?  Something is amiss when we protect our children from toys that they might swallow, but not from firearms.  So Veronica Rutledge is dead, and her son will grow up with the knowledge that he killed her — and we all bear some responsibility when we don’t even try to reduce the carnage.

Among other potential benefits, I think a sophisticated commitment by gun rights advocated to smart gun technologies could in some ways expand gun rights to people now too often denied their rights by overly broad federal firearm restrictions.  

Right now, for example, anyone convicted of any felony is forever criminally precluded from ever even possessing a firearm.  In a world with more technologically sophisticated guns, some kind of microchip might be installed in certain hunting rifles so that they only work at designated times in designated areas and perhaps then persons guilty of nonviolent felonies could be exempted from broad felon-in-possession prohibitions in order to be able to use these kinds of guns for sport.  Or, perhaps technology might allow all persons after completing their formal punishment to still be able to exercise their Second Amendment right to keep and bear arms: ex-cons might be permitted only access to smart guns with GPS tracking/reporting technology (something comparable to the internet tracking/screening software now regularly required to be on sex offenders' computers) so that authorities can regularly follow when and how former felons are exercising their gun rights.

A few recent and older related posts:

• Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
• "Smart Gun Technology Could Have Blocked Adam Lanza"
• Sentencing "highlights" in President Obama's new gun control push
• Technology, smart guns, GPS tracking and a better Second Amendment
• More on smart guns, dumb technologies and market realities
• Interesting developments in "smart gun" discussions and debate
• "Can ‘Smart Gun’ Technology Change the Stalemate Over Gun Violence?"