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Wednesday, September 23, 2015
Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"
As noted in this prior post, last week Senator (and Presidential candidate) Bernie Sanders announced his commitment to ending use of private prison in the United States. This week he has followed up by authoring this Huffington Post commentary under the headline "We Must End For-Profit Prisons." Here are excerpts taken from the start and end of the piece along with its major headings in-between:
The United States is experiencing a major human tragedy. We have more people in jail than any other country on earth, including Communist China, an authoritarian country four times our size. The U.S. has less than five percent of the world's population, yet we incarcerate about a quarter of its prisoners -- some 2.2 million people.
There are many ways that we must go forward to address this tragedy. One of them is to end the existence of the private for-profit prison industry which now makes millions from the incarceration of Americans. These private prisons interfere with the administration of justice. And they're driving inmate populations skyward by corrupting the political process.
No one, in my view, should be allowed to profit from putting more people behind bars -- whether they're inmates in jail or immigrants held in detention centers. In fact, I believe that private prisons shouldn't be allowed to exist at all, which is why I've introduced legislation to eliminate them.
Here's why:
For-profit prisons harm minorities....
For-profit prisons abuse prisoners....
For-profit prisons victimize immigrants....
For-profit prisons profit from abuse and mistreatment....
Prison industry money is corrupting the political process....
For-profit prisons are influencing prison policy ......
... and immigration policy....
For-profit companies exploit prison families....
Young people are being mistreated and exploited....
I have introduced legislation that will put an end to for-profit prisons. My legislation will bar federal, state, and local governments from contracting with private companies to manage prisons, jails, or detention facilities. Regulators will be directed to prevent companies from charging unreasonable fees for services like banking and telecommunications.
My legislation also takes steps to reduce our bloated inmate population. It reinstates the federal parole system, which was abolished in the 1980s, so that officials can individually assess each prisoner's risk and chance for rehabilitation. It ends the immigrant detention quota, which requires officials to hold a minimum of 34,000 people captive at any given time. And it would end the detention of immigrant families, many of whom are currently held in privately-owned facilities in Texas and Pennsylvania.
It's wrong to profit from the imprisonment of human beings and the suffering of their friends and families. It's time to end this morally repugnant practice, and along with it, the era of mass incarceration.
I have long tended to have an agnotic view of the private prison industry, in part because I generally tend to favor free-market solutions to big problems and in part because I view the public prison industry to be chock full the big problems stressed by Sanders in this commentary. Nevertheless, Sanders makes a strong case that private prisons exacerbate public harms in incarceration nation. Moreover, it is now quite interesting and important that a significant rival to Hillary Clinton for the Democratic nomination for President is now making prison reform a big priority on the campaign trail.
Some prior related posts:
- What does new Prez candidate Bernie Sanders have to say about criminal justice reform?
- "Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"
- Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons
September 23, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
"Pope Francis and the case for American criminal justice reform"
The title of this post is the headline of this notable new FoxNews commentary authored by Newt Gingrich and Pat Nolan. Here are excerpts:
Pope Francis's visit to the United States is attracting a flood of attention, and preparations have been underway for months in the cities and communities that will welcome him. While the pope will be greeted by thousands as he visits our nation's famous landmarks and cathedrals, he has also planned a stop where the residents cannot come out to greet him: a local jail in Philadelphia. A jail isn't a typical location for the fanfare that usually surrounds a papal visit, but Pope Francis's decision to shine a spotlight on people in jail shouldn't come as a surprise.
The pope has often implored us through his words and actions to treat the people we put in jail or prison with respect and mercy. Some of those in jail have committed serious crimes, while others have committed relatively minor offenses. Many struggle with mental illness or drug addiction. Many simply can't afford to make bail. Treating them justly and fairly is a strong Christian, and quintessentially Catholic, imperative. After all, Jesus taught us to visit those in prison. He also told us that what we do for the least of our brothers and sisters we do for Him.
When Pope Francis visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect. Pope Francis continues the tradition of Catholic leaders urging us to offer hope and a second chance to prisoners....
The pope's visit to the jail in Philadelphia will call attention to a part of our criminal justice system that receives too little notice: local jails. Prisons are the focus of most of the discussion about criminal justice reform, even though 20 times more inmates (12 million) pass through our jails each year compared to our prisons. The jail population is different from prisons because most jail inmates are nonviolent offenders awaiting trial, and innocent in the eyes of the law.
Indeed, many of those in jail don't belong there. One in six men and one in three women in local jails have serious mental illnesses — rates much higher than in the general public. These people are sick, not always bad. They need treatment, not necessarily incarceration. Others are held in jail for months and even years because they don't have the money to post a small bond. For example, in New York City, almost a third of inmates in 2012 were held until trial because they could not pay a bond of $500 or less.
We see time and time again that overincarceration tears families apart by locking up fathers, mothers, brothers, and daughters mostly for minor crimes. The vast majority of people in our jails are there for nonviolent offenses like traffic violations or drug use. When they are finally released, most have lost their jobs, which leaves them unable to support their families and puts stress on their loved ones and the community....
We have worked over the last decade to build conservative support for criminal justice reform, rooted in our political views as well as our faith. Our Catholic beliefs hold that each person is a child of God and worthy of respect. A cornerstone of the Catholic faith is that redemption is available to everyone, no matter what they have done. We are all sinners, and the ground is level at the foot of the Cross.
You don't have to be a Catholic to see the importance of Pope Francis's message. When he visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect, and offer them a second chance to turn their lives around.
September 23, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (1)
Tuesday, September 22, 2015
"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"
The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling. In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:
In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.
While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.
In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.
That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: "Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?"
This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.
Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.
Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court's rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.
Finally, state sentencing practices also show marked racial disparities in JLWOP's administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas's JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.
There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy's suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.
September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Sunday, September 20, 2015
"Mass Incarceration Has Become the New Welfare"
The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it. Here are excerpts:
When Ta-Nehisi Coates says that America's bloated and enormously expensive dependence on imprisonment has created a "social service program … for a whole class of people," he hits the nail on the head. Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as "welfare" expenditures.
Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school. These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way. And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses. This is what the historian Mike Davis once called "carceral keynesianism."
What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan's dire warnings about the dissolution of the "Negro family" and his rather inchoate "case for national action." Rather than redressing the problem of racism and "Negro" poverty, instead they turned to the expansion of a criminal justice system in the name of "law and order." Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.
But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted. Bringing together Moynihan's concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime. In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery. It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....
The terrible failures of America's criminal-justice system can actually, from a certain perspective, be seen as policy successes. The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up. Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons. Their return to the social services provided by incarceration, from this angle, makes a degree of sense. And the point of Coates's essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent....
Coates is right: To reform criminal justice requires "reforming the institutional structure, the communities, and the politics that surround it." Mustering the requisite political and social resolve to make those changes may seem impossible. But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison?
September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Friday, September 18, 2015
"Cuba to release 3,522 prisoners on the eve of Pope Francis' visit; why can't Obama do the same?"
The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:
Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country's jails. This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.
Why couldn't Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22? The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor. Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.
As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did. Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope. It would amount to the freedom of tens of thousands of people.
Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500. Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population. A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.
I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US. But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."
Some prior related posts on Pope Francis and criminal justice reform:
- Might Pope Francis shame Prez Obama into doing more about mass incarceration?
- Pope Francis categorically condemns death penalty as "inadmissible" in today's world
- Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
- Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government
- Might Pope Francis seek to (and succeed in getting) more federal sentencing reforms moving along?
September 18, 2015 in Clemency and Pardons, Prisons and prisoners, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)
Thursday, September 17, 2015
Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons
As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:
Sen. Bernie Sanders said he hopes to end the "private, for-profit prison racket" with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.
The Vermont independent, who is running for the Democratic presidential nomination, introduced the "Justice is not for Sale Act" with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.
"The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice," Sanders said. "Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors."...
Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. "Incarceration should be about rehabilitation and public safety, not profit," he said.
The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.
Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he's convinced the issue can find bipartisan support. "Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward."
The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.
September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)
Lots of new data from BJS on prisoners and from USSC on federal sentencing
Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources. Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:
From the Justice Department's Bureau of Justice Statistics, "Prisoners in 2014"
From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"
Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics. With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:
The number of prisoners held by state and federal correctional authorities on December 31, 2014 (1,561,500) decreased by 15,400 (down 1%) from yearend 2013.
The federal prison population decreased by 5,300 inmates (down 2.5%) from 2013 to 2014, the second consecutive year of decline.
The number of women in prison who were sentenced to more than 1 year increased by 1,900 offenders (up 2%) in 2014 from 104,300 in 2013 to 106,200 in 2014.
In 2014, 6% of all black males ages 30 to 39 were in prison, compared to 2% of Hispanic and 1% of white males in the same age group.
Violent offenders made up 54% of the state male prison population at yearend 2013, the most recent year for which data were available.
Half of males (50%) and more than half of females (59%) in federal prison were serving time for drug offenses on September 30, 2014
September 17, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)
Wednesday, September 16, 2015
"The Literal Cost of Solitary Confinement: Why are prisoners forced to pay fines when they are put in isolation?"
The title of this post is the headline of this notable New Republic piece, and here is an excerpt:
The United Nations has determined that solitary confinement may amount to torture: It can destroy the mind, sometimes the spirit. And yet many jails and prisons around the country have decided that this punishment alone is not harsh enough. It's not widely known, but inmates who are determined to have committed a disciplinary infraction are regularly subjected to fines that can range into the hundreds of dollars on top of weeks or months-long solitary sentences. Both the psychological damage caused by extreme isolation and the financial burden of the jail debt can hang over these people once they're released, often making re-entry into society nearly impossible.
"When the system is built on punishment, you find every chance you get to damage people more," said Glenn Martin, who spent six years in New York state prisons and founded the criminal justice reform group JustLeadershipUSA. "Unfortunately, prisons in America have evolved into places that are devoid of values such as rehabilitation, fairness and human dignity."
Prison officials in at least six state systems have the authority to impose fines in addition to solitary for a single rule violation. Wyoming charges up to $50, Georgia up to $100, Oregon as much as to $200. Fees in the states of New York, Kansas, and South Dakota range between $5 and $20. (Wyoming, New York State, Georgia, and Kansas dismiss fines once an inmate is released or put them on hold in case the person returns. South Dakota said it doesn't use solitary confinement, but the ACLU contends that the state's isolation policies fit the definition.)...
While some of the state disciplinary fees may sound insignificant, small fines can pile up fast. They pile up on people who often were homeless or unemployed before they were incarcerated and will face the same situations upon release. The ACLU of Kansas said inmates could easily rack up thousands of dollars of debt just from disciplinary fines....
For many inmates and their families, disciplinary fines accumulate on top of court and attorney fees, court-ordered restitution, and child support. And around the country, inmates may be obligated to pay for a seemingly infinite number of additional charges. Some of those costs: drug and alcohol abuse treatment; medical, dental, and psychiatric services; vocational training; toilet paper, laundry, and clothing; phone and video calls, food from the jail store, booking fees, drug testing, and fingerprinting. In some jurisdictions, inmates pay "room and board" for the time they spend in jail awaiting trial. Ninety percent of local jails collect revenue from incarcerated people. Those inmates pay an average of $1,259 per person per year to local facilities, according to a recent study by the Vera Institute of Justice.
Prisoners can even be charged for trying to kill themselves. "I've seen it multiple times," said Elisabeth Owen, the managing director of the Prisoners' Justice League of Colorado. "Someone hangs themselves and then they get a medical bill for thousands of dollars."
September 16, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)
"Who Pays? The True Cost of Incarceration on Family"
The title of this post is the title of this new report based on research by a number of public policy groups. Here is the executive summary:
For decades, individuals, families, and communities—especially low-income people and communities of color—have faced destabilizing and detrimental impacts as a result of our nation's unfair criminal justice policies. The repercussions of these policies extend far beyond sentencing and incarceration, affecting the employment, education, housing, and health of individuals and their families for years to come. A unique contribution to the body of research, the study explores the ways in which women support their incarcerated loved ones, often jeopardizing their own stability. Our nation can no longer afford the devastating financial and familial costs of incarceration if we truly want to foster communities that are healthy, sustainable, and just.
As a result of this research, recommendations are made for three key categories of critical reforms necessary to change the criminal justice system and to help stabilize and support vulnerable families, communities, and formerly incarcerated individuals: Restructuring and Reinvesting, Removing Barriers, and Restoring Opportunities.
Restructuring and Reinvesting: Following the lead of states like California, all states need to restructure their policies to reduce the number of people in jails and prisons and the sentences they serve. The money saved from reducing incarceration rates should be used instead to reinvest in services that work, such as substance abuse programs and stable housing, which have proven to reduce recidivism rates. Additionally, sentencing needs to shift focus to accountability, safety, and healing the people involved rather than punishing those convicted of crimes.
Removing Barriers: Upon release, formerly incarcerated individuals face significant barriers accessing critical resources like housing and employment that they need to survive and move forward. Many are denied public benefits like food stamps and most are unable to pursue training or education that would provide improved opportunities for the future. Families also suffer under these restrictions and risk losing support as a result of their loved one's conviction. These barriers must be removed in order to help individuals have a chance at success, particularly the many substantial financial obligations that devastate individuals and their families. On the flip side, when incarcerated people maintain contact with their family members on the outside, their likelihood of successful reunification and reentry increases, and their chances of recidivating are reduced. For most families the cost of maintaining contact is too great to bear and must be lowered if families are to stay intact. Removing cost and other barriers to contact is essential.
Restoring Opportunities: Focusing energy on investing and supporting formerly incarcerated individuals, their families, and the communities from which they come can restore their opportunities for a brighter future and the ability to participate in society at large. Savings from criminal justice reforms should be combined with general budget allocations and invested in job training and subsidized employment services, for example, to provide the foundation necessary to help individuals and their families succeed prior to system involvement and upon reentry.
Our nation's criminal justice system has dramatic impacts on the lives of individuals who are incarcerated and the lives of those they touch. These effects wreak financial, physical, and emotional havoc on women, families, and communities, undermining potential for a better life. The true costs of our criminal justice system are complex, deeply rooted, and demand a closer look at the multiple impacts on individuals and families. When these costs are understood and acknowledged, it becomes clear that the system — and society more broadly — must change.
September 16, 2015 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)
Monday, September 14, 2015
Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?
The question in the title of this post is prompted by this new New York Times piece by Adam Liptak headlined "Virginia Has Solitary Confinement Case, if Justices Want It." Here are excerpts:
The Supreme Court seems eager to hear a case on the constitutionality of a distinctively American form of punishment: prolonged solitary confinement. "Years on end of near total isolation exact a terrible price," Justice Anthony M. Kennedy wrote in a concurrence in a case in June. Justice Stephen G. Breyer echoed the point in a dissent in a case later that month.
An appeal from Virginia materialized almost immediately. Now the justices must weigh whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.
On the plus side, the case asks the sort of focused and incremental question that the justices often find attractive: May states automatically put all death row inmates in solitary confinement?
Last week, Mark R. Herring, Virginia's attorney general, filed a brief urging the court to turn down the appeal. It is, he said, the wrong vehicle to address "the broader concerns recently voiced by Justices Kennedy and Breyer." For starters, Mr. Herring wrote, "the case is likely to become moot before it can be decided." That is because the state intends to execute the inmate who brought the challenge, Alfredo R. Prieto, on Oct. 1.
More generally, Mr. Herring wrote, Virginia is the wrong state in which to examine the issue of prolonged solitary confinement on death row because its capital justice system is exceptionally efficient. Inmates in other states can spend decades in solitary confinement, he wrote, but Virginia generally executes condemned inmates seven to 10 years after their convictions.
Mr. Prieto has been on death row for about seven years. But that was enough isolation, he told the justices, to have caused him mental agony. In a 2013 deposition, the warden of the prison where Mr. Prieto is serving his sentence seemed to concede the inhumanity of solitary confinement. "There is real importance to getting out and being with other people, I agree, and not being 24/7 in a cell," said the warden, Keith Davis. "We, as humans, we don't survive very well that way with lack of human contact."
Later that year, a federal trial judge ruled in Mr. Prieto's favor. "He must spend almost all of his time alone," deprived of contact even with fellow prisoners, the judge, Leonie M. Brinkema, wrote. In theory, family members could visit on weekends in a room with a glass partition. "In actuality," she said, "no one ever comes."
Mr. Prieto, she said, "has not engaged in any of the behaviors that would normally support placement in segregated confinement," and was "by all accounts a model prisoner." On the other hand, he has a chilling criminal record. Mr. Prieto was on California's death row for the 1990 rape and murder of a 15-year-old girl when, in 2005, DNA evidence linked him to a 1988 rape and double murder in Virginia. He was extradited to Virginia and found guilty....
In March, a divided three-judge panel of the federal appeals court in Virginia reversed Judge Brinkema's ruling, though even the majority said the state's approach was harsh. "Of course," Judge Diana Gribbon Motz wrote for the majority, "the Supreme Court could prescribe more rigorous judicial review."
Last week, Mr. Herring, the state's attorney general, urged the Supreme Court to defer to prison officials in the case, Prieto v. Clarke, No. 15-31. "Death row offenders are sui generis," he wrote. "States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions."...
In June, Justice Kennedy lamented that "the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest." That seemed to change over the summer. In July, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities....
This month, California settled a lawsuit brought by the Center for Constitutional Rights by agreeing to cut back sharply on solitary confinement. The next day, a group representing the nation's corrections officials called for "efforts to limit or end extended isolation."
Things are changing even in Virginia, perhaps as a consequence of Mr. Pietro's lawsuit. In a sworn statement filed last month in a different case, Mr. Clarke, the corrections official, said death row inmates can now watch television and play games like chess or checkers with up to three other condemned prisoners for an hour a day. They can also have weekly "contact visits" with family members. These can include "one brief kiss, a handshake and/or an embrace."
Plans are afoot, Mr. Clarke added, for an outdoor recreation yard that will allow small groups of death row inmates to play basketball and exercise together. It should be completed by the end of October, not long after Mr. Prieto's scheduled execution.
Regular readers likely know that I believe and often lament that capital cases often get too much attention from the Supreme Court (and others) relative to other cases involving much less serious crimes and much more sympathetic offenders. Nevertheless, as this piece notes, Virginia's blanket policy of putting all death-row defendants in solitary might make this case an appropriate (and certainly interesting) setting for a foray into what the Eighth Amendment might say these days about extreme forms of imprisonment.
September 14, 2015 in Death Penalty Reforms, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Friday, September 11, 2015
"Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement "
The title of this post is the headline of this notable new Issue Brief authored by Laura Rovner released today by the American Constitution Society for Law and Policy. Here are excerpts from the start of the brief (with footnotes omitted:
Solitary confinement irreparably harms people. For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: "Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone." U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....
[I]t was more than a century ago, as Justice Kennedy recently reminded us, that the Supreme Court first recognized the harm solitary confinement causes and nearly declared it unconstitutional. Yet, despite this unequivocal condemnation of solitary confinement by the nation's highest court, over the course of the century that followed — and especially the last three decades — most states and the federal government have significantly increased their use of penal isolation. Today, conservative estimates place the number of people in solitary confinement at over 100,000. And they are there largely with the blessing of the federal courts.
While the Eighth Amendment's prohibition against cruel and unusual punishment appears to provide mechanisms to challenge the use of long-term solitary confinement, the way the federal courts have interpreted the amendment in the past two decades has rendered judicial review virtually meaningless, resulting in an unprecedented number of people being held in conditions of extreme solitary confinement. Part I of this Issue Brief examines the nature of solitary confinement and how it developed in the U.S. Part II discusses (in broad outlines) the current jurisprudence of Eighth Amendment solitary confinement litigation. Finally, Part III offers some reasons for optimism going forward and one promising path to achieving meaningful reforms through constitutional challenges to the practice.
September 11, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7)
Thursday, September 10, 2015
"No Reason to Blame Liberals (or, the Unbearable Lightness of Perversity Arguments); Review of the First Civil Right: How Liberals Built Prison America, by Naomi Murakawa"
The title of this post is the title of this new review by Margo Schlanger available via SSRN discussing a provocative book about the American political left's role in mass incarceration. Here is the abstract:
This is a review of The First Civil Right: How Liberals Built Prison America, by political scientist Naomi Murakawa. Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights. Rather, she argues, starting right in her subtitle, "liberals built prison America." It was liberals, she claims, who "established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration." Her major point along these lines is that the liberal preoccupation with using fair, non-racist procedures has contributed importantly to the growth of the carceral state, taming reform urges, entrenching the punitive regime. This argument sounds in perversity — on Murakawa's account, liberalism's attempt to improve racial justice using procedural tools not only fails, it is counter-productive, entrenching and worsening the system's inequities.
The review critiques Murakawa's focus on federal crime policy as missing the more important state and local dynamics. In addition, it argues that Murakawa's perversity argument is essentially aesthetic — that she adduces only post-hoc/propter-hoc kind of evidence that the liberal proceduralism she highlights has accompanied the ballooning of the incarcerated population. That is far from enough to convict generations of liberals — many though not all of whom decried overincarceration, as well as the unfair procedures that accompanied it — of the charge that they "built prison America."
Prior related posts:
- "How White Liberals Used Civil Rights to Create More Prisons"
- Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarceration
- "Who Built Prison America? Not Ted Kennedy"
September 10, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Wednesday, September 09, 2015
Noting federal prison reforms possible without statutory changes
A helpful reader alerted me to this notable Forbes article by Walter Pavlo which highlights ways the federal prison population could be lowered without waiting for whatever Congress might (or still might not) end up doing to reform federal sentencing statutes. The piece is headlined "Prison Reform Is All The Rage, But A Real Opportunity For Change Might Be Missed," and here are excerpts:
Many past U.S. Congress's have drafted criminal reform bills, only to have them lay dormant in committee. Traditionally, the press releases and sound-bites have only provided false hope to those serving time. The SAFE Act is the most recent and has received some positive press but lacks significant sponsorship in Congress. Then there's the Smarter Sentencing Act and the Second Chance Reauthorization Act that has recently lost some momentum. There are others, but none worth mentioning....
There are many ways to use existing legislation and policies to reduce populations that need more focus and advocacy. First, we need to allow more old and sick inmates to go home under compassionate release programs by crediting "earned" good conduct time towards program eligibility. Second, rather than building new prisons, the federal government should divert the funding to build out of the Residential Reentry Centers (RRC) infrastructure and allow for more direct community placement designations, which was the true intent of the Second Chance Act under 18 USC 3624. Next, early deportation options should also be explored for those who are in the U.S. illegally.
We have a problem of aging, sick inmates in the federal prison system. There are currently six (6) major medical facilities that offer treatments for inmates for various ailments ranging from dialysis to chemotherapy. It's expensive with some estimates being as high as $57,000 per year per inmate. The recidivism studies show far lower rates of recidivism for elderly offenders.
Halfway house, RRCs, offer a chance for inmates to serve the remainder of their time in the community working in a regular job, integrating with their family and learning skills. According to [Jack] Donson [a retired BOP employee], the BOP has the statutory authority to place offenders directly in halfway house at any time because the Federal Courts have made clear that RRC's are penal or correctional facilities within the meaning of the applicable statues. "Having a person in a community correctional treatment program including a job and integrating with their family is far better than any program the BOP could ever offer and inmate." So an RRC is basically a prison where inmates serve their debt to society … except that it would be MORE beneficial to most everyone....
While we wait for the next prison reform bill, let's hope it is a comprehensive Omnibus Crime bill with both front end and back end (retroactive) measures that can be quickly implemented with a simultaneous build out of the RRC infrastructure. Congressmen and senators would do us all a service by putting pressure on the Department of Justice to use the existing policies and laws to begin changing prisons now.
September 9, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Thursday, September 03, 2015
"The simple truth about why mass incarceration happened"
The title of this post is the headline of this effective recent Vox piece by German Lopez. Here are excerpts:
How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?
It's a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.
But there's a much simpler explanation: The public wanted mass incarceration. It's easy to forget now, but the politics of crime were huge in the 1990s. According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.
Americans had a very good reason for these concerns. From the late 1960s to the early 1990s, crime was unusually high. The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence. So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.
It's very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that research has shown that mass incarceration only partly contributed to this decline. But people didn't know that at the time. They didn't know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive. Politicians thought crime would get worse, not better.
In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people....
In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime. That's partly why liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration. It's why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime. And it's why practically every state passed tough-on-crime policies throughout the 1980s and 1990s....
Popular demand for tough-on-crime laws in the past doesn't in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies. But based on voters' concerns in the 1990s, if a politician didn't contribute to the problem back then, he or she may not be prominent enough to run for president today. That's how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.
September 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)
Wednesday, September 02, 2015
Prison administrators contribute to new report on solitary confinement
As detailed in this press release, the Association of State Correctional Administrators has joined with researchers at Yale to produce an important new report about solitary confinement. Here are the basics via the press release:
Prolonged isolation of individuals in jails and prisons is a grave problem in the United States. The insistence on change comes not only from legislators across the political spectrum, judges, and a host of private sector voices, but also from the directors of correctional systems at both state and federal levels. Even as a national outcry has arisen about isolation, relatively little information exists about the actual number of people held in restrictive housing, the policies determining their placement, and whether and how conditions vary in different jurisdictions. Indeed, the figures cited on the number of people held in isolation vary from 25,000 to more than 80,000. But that information comes from a decade and more ago.
To rectify the absence of data and to pave the way for changes, the Association of State Correctional Administrators (ASCA) joined with the Arthur Liman Public Interest Program at Yale Law School to develop a national database of the policies and practices on what correctional officials call "restricted housing" and is frequently referred in the media as "solitary confinement." ASCA is the only national organization of persons directly responsible for the administration of correctional systems and includes the heads of each state's corrections agencies, as well as the Federal Bureau of Prisons, the District of Columbia, New York City, Philadelphia and Los Angeles County.
The result is the new report Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison, which is the first to provide updated information, as of the fall of 2014, on both the numbers and the conditions in restrictive housing nationwide. This Report represents the commitments of correctional leaders to make such changes. But without a baseline, it is not possible to know the impact of the many efforts underway. Time-in-Cell provides one way to measure and to learn whether the hoped-for changes are taking place, to reduce and to eliminate the isolation of prisoners, so as to enable prisoners and staff to live and work in safe environments, respectful of human dignity.
This important report, which runs nearly 100 pages, is available in full at this link. Some of its findings and the broaded policy discourse now surrounding solitary confinement are effectively covered in new stories via the New York Times and the Wall Street Journal here and here, respectively.
September 2, 2015 in Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)
Prison realities and reform insights from "Mr. Smith Goes to Prison"
Politico magazine has this fascinating excerpt from a new book titled "Mr. Smith Goes to Prison: What My Year Behind Bars Taught Me About America's Prison Crisis." The book is authored by Jeff Smith, a former Missouri state senator, who spent a year in federal prison for violating federal election laws, and parts of the excerpt read a bit like the Y-chromisone version of Orange is the New Black. But, as these passage highlight, it appears the book covers much more than just the fish-out-of-water elements of prison life for a white-collar offender:
Long story short: Five years after losing the election, I pleaded guilty to two counts of obstruction of justice for impeding the federal investigation Carnahan had initiated. But I requested an unorthodox sentence: two years of home confinement and full-time community service during which I would be allowed to leave my house only to teach civics and coach basketball at a St. Louis charter school I'd co-founded a decade earlier. It would've saved taxpayers about $175,000: two years of a teacher's salary, plus the cost of housing a federal prisoner, since I would've paid for my electronic monitoring. More than 300 people, including a bipartisan group of the state's top elected officials, wrote public letters to the to the judge requesting clemency and arguing that — as the prison counselor in Kentucky would later note — locking me up would be a waste. But the Feds portrayed me as the mastermind of a "textbook case of political corruption" and pushed for a harsh sentence at the top of the federal guidelines. The judge gave me a year and a day in federal prison.
Six months later, I was adrift in a sea of sharks — a professor-turned-politician-turned-felon forced to learn prison patois and the politics of survival. Among other areas, I'd studied and taught criminal justice policy as a political scientist for a decade. But in prison I would be the student, not the teacher.
This is the story of what I learned — about my fellow prisoners, the guards and administrators, and the system in which we operated. It is a cautionary tale of friendship and betrayal. It is a story of how politics prepared me — and didn't — for prison, and how prison prepared me for life. But more broadly, it is a scathing indictment of a system that teaches prisoners to be better criminals instead of better citizens, and a prescription for how America can begin to decarcerate and harness the untapped potential of 2.2 million incarcerated people through programs that will transform offenders' lives, infuse our economy with entrepreneurial energy, increase public safety and save taxpayers billions by slashing sky-high recidivism rates....
Prisons have been called "training grounds for rapists," and according to one estimate based on two decades of surveys, nearly 300,000 rapes occur annually in U.S. prisons. The most recent Justice Department data concluded that from 2003 to 2012, nearly 2 million inmates were sexually assaulted, costing society as much as $51.9 billion annually, including the costs of victims' compensation and increased recidivism. Advocates hoped that passage of the 2003 Prison Rape Elimination Act (PREA), which sought to prevent, uncover and address sexual assault, would help, but many large states have refused to comply with it (with little consequence). In 2011, a typical prisoner's likelihood of being raped was roughly 30 times higher than that of a given woman on the outside, suggesting a depressingly steady trendline despite PREA's passage. And since reporting assaults will only bring more trouble from fellow prisoners and COs alike, most victims remain quiet, rendering official prison data unreliably low.
Exacerbating this is a dearth of post-rape psychological treatment during incarceration and reentry, which increases the likelihood that victims will suffer from PTSD as well as their odds of recidivism — especially for crimes involving sexual assault. Tragically, prison rape often causes compensatory aggression as untreated victims commit rapes upon release to reclaim their manhood in the same way they imagine it was lost. This vicious cycle by which (frequently) nonviolent offenders become violent is the opposite of the duty that "correctional institutions" are meant to perform....
I spent less than a year in prison. In the words of my first cellie, I had less time in prison than he had done on the prison toilet. I had every advantage upon re-entry: I was a white guy with a Ph.D. from a top school, community and family support, and financial savings. Yet getting a decent job was a struggle. I often think about the re-entry of the guys I was locked up. Most had a GED earned in prison; some hadn't had a visit in years, or even a decade, and had no one to call on the phone; few had savings to fall back on. They would be coming home to a world in which four of five landlords and nine of 10 employers run criminal background checks on prospective tenants and employees to screen out felons, in which many are not allowed to vote or use food stamps and in which they must immediately find money to pay for a halfway house room and urinalysis tests even as they cannot afford clothes for a job interview.
Mass incarceration is driven in large part by sky-high recidivism rates, and when one contemplates the myriad obstacles to successful prisoner re-entry, one grasps that the system is not, as many claim, broken at all; rather, it appears to be a well-oiled machine, keeping millions of people out of our economic mainstream. And only a shift in our cultural mindset — a realization that people who are incarcerated could, to paraphrase President Obama after his recent prison visit to a federal prison, be our brothers, our sons, our mothers, or ourselves — will change that.
September 2, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1)
Tuesday, September 01, 2015
California settles prisoner lawsuit by agreeing to limit use of solitary confinement
As reported in this local AP piece , headlined "California to end unlimited isolation for most gang leaders," a lawsuit concerning California's use of solitary confinement culminated today in a significant settlement. Here are the details:
California agreed Tuesday to end its unlimited isolation of imprisoned gang leaders, restricting a practice that once kept hundreds of inmates in notorious segregation units for a decade or longer.
The state is agreeing to segregate only inmates who commit new crimes behind bars and will no longer lock gang members in soundproofed, windowless cells solely to keep them from directing illegal activities by gang members. "It will move California more into the mainstream of what other states are doing while still allowing us the ability to deal with people who are presenting problems within our system, but do so in a way where we rely less on the use of segregation," Corrections and Rehabilitation Secretary Jeffrey Beard told The Associated Press.
The conditions triggered intermittent hunger strikes by tens of thousands of inmates throughout the prison system in recent years. Years-long segregation also drew criticism this summer from President Barack Obama and U.S. Supreme Court Justice Anthony Kennedy.
"I think there is a deepening movement away from solitary confinement in the country and I think this settlement will be a spur to that movement," Jules Lobel, the inmates' lead attorney and president of the Center for Constitutional Rights, said in a telephone interview.
The lawsuit was initially filed in 2009 by two killers serving time in the security housing unit at Pelican Bay. By 2012, Todd Ashker and Danny Troxell were among 78 prisoners confined in Pelican Bay's isolation unit for more than 20 years, though Troxell has since been moved to another prison. More than 500 had been in the unit for more than 10 years, though recent policy changes reduced that to 62 inmates isolated for a decade or longer as of late July.
The suit contended that isolating inmates in 80-square-foot cells for all but about 90 minutes each day amounts to cruel and unusual punishment. About half the nearly 3,000 inmates held in such units are in solitary confinement. Inmates have no physical contact with visitors and are allowed only limited reading materials and communications with the outside world.
The settlement will limit how long inmates can spend in isolation, while creating restrictive custody units for inmates who refuse to participate in rehabilitation programs or keep breaking prison rules.... Lobel said the new units, by giving high-security inmates more personal contact and privileges, should be an example to other states to move away from isolation policies that he said have proven counterproductive in California....
Nichol Gomez, a spokeswoman for the union representing most prison guards, said it was disappointing that "the people that actually have to do the work" weren't involved in the negotiations, so she couldn't immediately comment.
Beard said he will work to ease the unions' previously expressed concerns that guards could face additional danger. He said the settlement expands on recent changes that have reduced the number of segregated inmates statewide from 4,153 in January 2012 to 2,858 currently.
Until recently, gang members could serve unlimited time in isolation. Under the settlement, they and other inmates can be segregated for up to five years for crimes committed in prison, though gang members can receive another two years in segregation.
September 1, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Monday, August 31, 2015
"The Just-Barely-Sustainable California Prisoners' Rights Ecosystem"
The title of this post is the title of this interesting new paper by Margo Schlanger now available via SSRN. Here is the abstract:
Nationwide, litigation currently plays a far smaller role as a corrections oversight mechanism than in decades past, a change largely caused by the 1996 Prison Litigation Reform Act (PLRA). Yet no such decline is evident in the nation's most populous state, California, where prisoners' rights litigation remains enormously influential and was the trigger to the criminal justice "Realignment" that is the subject of this symposium. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement.
This article examines why California is different. It argues California's very large bar includes a critical mass of highly expert prisoners' rights lawyers. Working for both non-profits and for-profit firms, they benefited from a pipeline of large-scale, pre-PLRA, fees-paying cases that sustained them while they learned to cope with the statutory obstacles. And the Ninth Circuit's hospitable bench awarded them some favorable fee-related rulings in support of their coping strategies. In short, they learned how to — just barely — maintain a prisoners' rights docket nothwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.
August 31, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Sunday, August 30, 2015
Following the industries that follows incareration nation (with only limited concerns about sentencing reform)
Today's New York Times has this interesting article authored by David Segal about various corrections-oriented industries and their (limited) worries about the impact of sentencing reform on their bottom lines. The article is headlined "Prison Vendors See Continued Signs of a Captive Market," and here are a couple excerpts:
[There were] 264 vendors in booths at the Indiana Convention Center for what is essentially a trade show for the prison industry. It is the shiny, customer-friendly face of a fairly grim business. The A.C.A. accredits jails and prisons and is also the country's largest association for the corrections field, with a membership filled with wardens and state and county correctional administrators.
The convention is where those people windowshop. The United States currently imprisons about 2.2 million people, making it the world's largest jailer. Those in charge of this immense population need stuff: food, gas masks, restraints, riot gear, handcuffs, clothing, suicide prevention vests, health care systems, pharmacy systems, commissary services — the list goes on. These outlays are a small fraction of the roughly $80 billion spent annually on incarceration, though precise sales figures are hard to come by because most companies in this niche market are private. Two publicly traded players, the private prison operators Corrections Corporation of America and the GEO Group, have a combined market capitalization of almost $5.8 billion. Both companies had booths in Indianapolis.
For prison vendors, this would appear to be a historically awful moment. Sentencing reform has been gaining momentum as a growing number of diverse voices conclude that the tough-on-crime ethos that was born 40 years ago, and that led to a 700 percent increase in the prison population since 1970, went too far....
My goal ambling through the oddly colorful bazaar in Indianapolis for three days was to see what effect — if any — this much discussed change was having on the hardnosed bottom line. Was anyone here experiencing a slump, or even bracing for one? Nobody wants businesses to suffer financially, but if you think the current incarceration system is a calamity, there is no way around it: Bad news for these companies is good news for the country. And if change was coming, or had already arrived, these vendors would be among the first to know.
I had no idea what I would find. But a few days before the exhibition doors opened, I spoke on the telephone to a skeptic, a guy who just didn't believe that the country was really on the verge of a correctional system makeover. "It's hard for me not to be cynical about it," said Jack Cowley, a retired warden who lives in Oklahoma. "Think about the size of our system, all the judges and lawyers, putting their kids through college, people that make leg irons, Tasers. Crime is driving the train. It's like a business that is too big to fail."...
In Indianapolis this summer, there were the ingratiating smiles that are always part of sales, but nobody seemed giddy. Concern about sentencing reform was in the air, but more than a few vendors seemed to regard the trend as a business opportunity....
[M]any companies are trying to diversify. In 2013, Corrections Corporation of America, the country's largest private prison company, purchased Correctional Alternatives, which specializes in reentry programs, like work furloughs and home confinement. "We have continued to look for opportunities in this service area," a spokesman for C.C.A. wrote in an email. "It aligns with the needs of our government partners, who are increasingly looking to this type of solution."
August 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Saturday, August 29, 2015
"Federal Drug Sentencing Laws Bring High Cost, Low Return"
The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:
More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.
Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.
August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)
Thursday, August 27, 2015
"Criminal Justice Reform Begins With Fair Sentencing and Fair Chances"
The title of this post is the headline of this new commentary which strikes me as especially notable because (1) it is authored by the Coaltion for Public Safety's senior policy advisor, Lance Lemmonds, who recently worked for the Association of Prosecuting Attorneys and on a number of Republican campaigns, and (2) it is published by The American Spectator. Here are excerpts:
Political conservatives who, since at least the Nixon administration, have worn with pride the badge of "tough on crime" are beginning to realize that tough doesn't necessarily mean the same as being "smart on crime."
Just as the private sector has embraced the mantra of "working smarter, not harder," it's time for federal and state officials to acknowledge the need for a smarter and more cost-effective criminal justice system.
Reducing life-without-parole sentences is one of several planks in the Coalition for Public Safety's nonpartisan campaign for fair sentencing and fair chances, the overall goal of which is aimed at reducing the nation's burgeoning jail and prison populations and breaking down the barriers to successful re-entry into society.
The coalition supporting the fair sentencing and fair chances campaign believes that we can dramatically reduce the enormous amount of money — currently $80 billion — that American taxpayers spend annually on incarceration in the state and federal jail and prison systems — and do so without jeopardizing public safety. That coalition includes the conservative groups Americans for Tax Reform, Faith & Freedom Coalition and FreedomWorks.
In addition to calling for a reduction in the number of life-without-parole sentences, CPS' fair sentencing and fair chances campaign is also calling for reducing the length of federal mandatory-minimum sentences for nonviolent offenses, so that the punishment fits the crime. That will help safely alleviate prison overcrowding while also curbing burgeoning costs....
At both the federal and state levels, we also advocate greater use of alternatives to incarceration, where appropriate. These include restitution, community supervision and residential re-entry centers, both pre-trial and post-sentencing, as well as expanded access to mental health care, substance-abuse treatment, education and job training.
Programs that allow inmates to reduce their sentences through credit for good behavior and participation in recidivism-reduction training should be expanded. So should the sealing of criminal records, where appropriate, to encourage rehabilitation and to make it easier for ex-offenders to find gainful employment and reintegrate into society....
Clearly, something needs to be done when, since 1980, the federal prison population has increased nearly tenfold and the state prison population has quadrupled. More than 1 percent of all U.S. adults are now behind bars, by far the highest rate of any nation in the world.
By addressing much-needed reforms to the current one-size-fits-all approach to prison sentencing, and by also reducing barriers to education, housing, and employment that so many ex-offenders face, we can protect our communities and increase public safety. We must seize this unique opportunity for progress to make the justice system smarter, fairer, and more effective.
August 27, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)
"When Prisons Need to Be More Like Nursing Homes"
The title of this post is the headline of this new lengthy Marshall Project piece about the challenges posed by an aging prison population. Here is how it begins:
America's prison population is rapidly graying, forcing corrections departments to confront the rising costs and challenges of health care in institutions that weren't designed to serve as nursing homes.
Between 1995 and 2010 the number of inmates aged 55 and up almost quadrupled, owing in part to the tough-on-crime sentencing laws of the 1980s and 90s, according to a 2012 ACLU report. In 2013, about 10 percent of the nation's prison inmates — or 145,000 people — were 55 or older. By 2030, the report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration. Caring for elderly inmates can cost up to twice as much as caring for younger ones.
In North Carolina, for example, it costs an estimated four times as much. During the fiscal year 2006-2007 — its most recent figures — the state's corrections department spent $33,824,060 on health care for inmates over 50, a 35% increase from just two years earlier.
Despite these runaway costs, there is no national oversight to determine how prisons handle the challenges of an aging population, says Marc Stern, a consultant in correctional health care. "If a Medicaid or Medicare auditor walked into [a large urban hospital] to do an audit'' Stern said, "they would say, 'O.K., where's your geriatric unit? Where's your dementia unit?' It's part of the audit process, it's part of the intelligence phase that is part of being part of a national organization."
But some states are confronting the costs and the problems. Here is a look at some innovative programs in New York, California and Connecticut.
A few (of many) recent and older related posts:
- Examining the sources of an ever-aging US prison population
- New major report documents costs and concerns with aging prison populations
- Big new ACLU report highlights the high cost of high numbers of elderly prisoners
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- Are all states going to need to create old-age prisons?
- The high costs of an aging prison population
- The story of prisons becoming nursing homes in Virginia
- "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
- The never-aging (and ever-costly) story of ever-aging US prison populations
August 27, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)
Tuesday, August 25, 2015
Might Pope Francis seek to (and succeed in getting) more federal sentencing reforms moving along?
The question in the title of this post is prompted by this notable new Yahoo Politics piece headlined "Criminal justice reformers await holy ally: Pope Francis." Here are excerpts:
There's a long history of religious leaders writing and teaching from inside prisons — from Martin Luther King to Paul the Apostle. But 78-year-old Pope Francis may be the most prominent religious leader to ever advocate for prison reform from the outside.
Last year, Francis called for an end to solitary confinement, the death penalty and life imprisonment. He has knelt down to wash and then kiss the feet of Roman inmates on two of the first Holy Thursdays of his papacy. Visiting a group of Bolivian prisoners recently, the pope told them he sees no difference between them and himself — they are all sinners.
Now Francis is coming to the United States, much to the delight of criminal justice reformers who have waged a growing bipartisan battle to scale back and remake the mammoth U.S. penal system. Reformers hope Francis' visit to the Curran-Fromhold Correctional Facility in Philadelphia next month as part of his six-day U.S. tour will grab lawmakers' attention. A few days before visiting the inner-city prison, the pope will address Congress and could raise the issue of criminal justice reform there as well....
Francis is not the first pontiff to urge mercy and redemption for convicts. Pope Innocent X visited inmates in the late 1600s. Pope John Paul II famously forgave and asked for a pardon for the man who almost killed him in a 1981 assassination attempt, and Pope Benedict visited at least two prisons. But Francis is unique in how much emphasis he's put on the issue and how specific he's been about how societies should treat their prisoners. He's visited at least four prisons in his short tenure as pope, including one of the most dangerous in Latin America, and responded to hundreds of letters from U.S. prisoners serving life sentences for crimes they committed as juveniles.
In a speech to penal-law representatives from around the world in October 2014, the pope laid out his vision for criminal justice reform. He called for an end to solitary confinement, which he compared to torture, and spoke out against pre-trial detention. (The U.S. sends thousands of people to prison each year because they cannot afford bail.) He spoke out against both the death penalty and life sentences. ("A life sentence is just a death penalty in disguise," said Francis.) And he urged law enforcement to take pity on pregnant, old and young offenders.
The pope also urged countries to more broadly reflect upon the point of imprisonment. Is it about bringing justice to victims and reforming the offenders? Or is it simply revenge and a way to "scapegoat" stereotyped people for all social ills? Addressing prisoners in Italy last year, Francis spoke passionately about how locking people up for years and years without giving them hope for reintegrating into society is wrong.
"Some consider taking a path of punishment, of misdeeds, of sins and just to suffer, suffer, suffer," he said in a penitentiary in the Italian town of Isernia. "To cage people … for the mere fact that if he is inside we are safe, this serves nothing. It does not help us."
It's unclear if Francis will use his visit with roughly 100 inmates in the Philadelphia prison's gymnasium to advocate for specific reforms. And his congressional speech could well focus instead on poverty, the need to care for the environment or welcoming immigrants — all major themes of his ministry. "What we're really hoping for are some specific United States statements," said Karen Clifton, the executive director of the Catholic Mobilizing Network, an anti-death-penalty group. "We do incarcerate per capita more than anyone else in the world. He's got to bring those facts to life."
This could lead legislators to think twice about their priorities. "If this good and holy man says this is a concern, I think it affects the conscience of all legislators and especially Catholics," said Pat Nolan of the American Conservative Union, a leader in the reform movement.
Some prior related posts on Pope Francis and criminal justice reform:
- Might Pope Francis shame Prez Obama into doing more about mass incarceration?
- Pope Francis categorically condemns death penalty as "inadmissible" in today's world
- Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
- Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government
August 25, 2015 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (2)
"Federalism in Action: How Conservative States Got Smart on Crime"
The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks. Here is how the relatively short white-paper concludes:
Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.
The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.
Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.
One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. "Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless," Deal explained. "But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system."
"Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight," he said, pointing to Sarah in the gallery of the chamber.
"Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts."
"That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes," he added.
Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.
August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)
Monday, August 24, 2015
Spotlighting disparities in who gets drug treatment in prison
This notable new Pacific Standard article shines a spotlight on yet another arena in which race and other personal factors may impact the operation of our modern criminal justice system. The piece is headlined "Who Does, and Who Doesn't, Get Drug Treatment in Prison: New research finds a racial disparity," and here are excerpts (with a few key links preserved):
Research has consistently shown how important it is for inmates who come into prison with drug addictions to get treatment behind bars: Drug use in prison that involves needles can spread disease, and cold-turkey withdrawals can lead to overdoses when people get out. But new research also shows that, even when drug treatment is available to prison inmates, not everyone actually takes advantage of it. In fact, the disparity between who does and does not seek treatment often falls among racial lines.
For her recent article in the journal Addictive Behaviors, University of Colorado–Boulder sociologist Kathryn Nowotny looked at survey information gathered in 2004 from state prisons across the country — over 5,000 inmates in 286 prisons. She found that fewer than a half of the inmates who had drug dependency problems had received any kind of treatment at all in their time behind bars. Of those who had, the most commonly referenced treatment was "self-help groups" (as opposed to, say, opioid replacement therapy). And she also found that, when treatment was available, Hispanic inmates who had drug dependency were much less likely than either white or black inmates to utilize it. But why?
Nowotny wrote that she was motivated to examine the racial disparities in drug treatment program use in prisons because there was a dearth of research on this topic. But many other researchers have previously found the same patterns in drug treatment programs out in the communities as well. She notes that — in addition to the widely held consensus viewpoint that people of color have disproportionate contact with every stage of the criminal justice system in America — programs that divert first-time drug offenders out of prison and into alternative treatment have often been shown to favor those defendants "with economic and social resources." But the disparity she found in treatment during prison sentences was apparent, even when she accounted for all of the other possible factors, like age, gender, marital status, socioeconomic factors, mental health, and criminal history.
In looking for reasons for the disparity, she points to another finding — that white inmates with drug dependency issues are more likely than Hispanic ones to have in-prison drug treatment mandated as part of their sentences. There could also be a much simpler reason for the difference in drug treatment participation. "It is also possibly that language barriers and other indicators of acculturation account for this disparity especially considering that one in five Latinos in prison are foreign born," she adds. "This hypothesis is bolstered by the fact that no black-white disparities were found."
A similar study, published in 2013 in the International Journal of Offender Therapy and Comparative Criminology, looked not at state prison inmates but at people being held in county jails that offered drug treatment programs. But the researchers in that study did not find that the differences broke down on more personal lines. They did not find a disparity between jail inmates of different races or ethnicities; here, it was more an issue of age and individual outlook. Younger people were less likely to seek treatment. Men were less likely than women to accept this kind of help. So were people who said they doubted whether they had the discipline or the time to make it stick.
August 24, 2015 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)
Thursday, August 20, 2015
"Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"
The title of this post is the headline of this notableg piece via the Marijuana Politics website that reports on some recent statements by Senator Sanders on the campaign trail that should be of special interest to sentencing law and policy fans. Here are excerpts (with links from original):
Bernie Sanders isn't done talking about criminal justice reform — in fact, he's merely getting started. The presidential contender continues to rise in the polls and sensible Drug War reforms will only increase his standing with the Democratic base.
Appearing at a campaign rally in Nevada on Tuesday, the Vermont Senator and Democratic presidential candidate talked at length about the unfairly punitive policies that plague the American justice system and disproportionately affect people of color in the United States. Speaking to the crowd of 4,500 supporters gathered outside the University of Nevada, Sen. Sanders went beyond his previous speeches on the issue, announcing that, come September, he will be introducing federal legislation which would abolish for-profit private prisons.
"When Congress reconvenes in September," Sanders said, "I will be introducing legislation, which takes corporations out of profiteering from running jails."
Tackling the problem of for-profit prisons is a bold move for a federal legislator, as the prison industry is a hugely profitable part of the U.S. economy. The top two private prison companies in the country, Corrections Corporation of America and GEO Group, have a combined annual revenue of over $3 billion, much of which is spent lobbying elected officials to protect their bottom line. While some states, such as New York and Illinois, have enacted laws to ban the privatization of prisons, for-profit prisons have tragically remained a staple of the American criminal justice system, in large part due to the country's skyrocketing incarceration rates made possible by the War on Drugs.
Bernie Sanders also indicated that the War on Drugs will be a focus of his campaign. "We want to deal with minimum sentencing," Sanders said Tuesday, "Too many lives have been destroyed for non-violent issues. People that are sent to jail have police records. We have got to change that. Our job is to keep people out of jail, not in jail." According to audience members, Bernie Sanders also said that his campaign will be addressing marijuana legalization in the weeks to come.
August 20, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)
Tuesday, August 18, 2015
Lots and lots of good summer reads about US criminal justice problems
Among the many benefits I see in lots more political and policy attention to mass incarceration and broader American criminal justice concerns is the presence of lots more thoughtful (old and new) media coverage of problems in current US policies and pactices. Here are just a few examples of both news coverage and commentary catching my eye early in this mid-summer week:
From The Daily Beast here, "95% of Prosecutors Are White and They Treat Blacks Worse: Black men are 65 percent more likely to be hit with 'mandatory minimum' sentences than the average defendant."
From The Nation here, "Prison Education Reduces Recidivism by Over 40 Percent. Why Aren't We Funding More of It?"
From the New York Times here, "With Clemency From Obama, Drug Offender Embraces Second Chance"
From Real Clear Markets here, "How Hospitals Could Help Reduce Prison Recidivism"
From The Volokh Conspiracy here, "More fuel for the movement to reform sex offender laws"
August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)
Finally, a bit more (though inadequate and unfair) discussion of sentencing finality issues
I am intrigued to see this potent new New York Times op-ed by civil rights attorney Alec Karakatsanis headlined "President Obama's Department of Injustice." But, as explained below (and as hinted in the post title), though this piece does a useful job of highlighting concerns with doctrines and policies that give too much significance to the "finality" of problematic federal prison sentences, I fear this op-ed is itself a problematic version of "shooting the messenger." Here are excerpts (with some key phrases emphasized for the comments to follow):
Last month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug-related charges. But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.
The case of Ezell Gilbert is emblematic of this injustice. In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine. Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.
At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release. A court ruled against him. Nearly 10 years later, the Supreme Court issued a ruling in another prisoner's case, confirming that Mr. Gilbert had been right. A public defender helped him file a new petition for immediate release in light of this new decision.
Mr. Obama's Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert's sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release. The "finality" of criminal cases was too important, the department argued, to allow prisoners more than one petition, even if a previous one was wrongly denied.
A federal appellate court disagreed, and in June 2010, three judges set Mr. Gilbert free. The judges rejected the administration's argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal. Mr. Gilbert returned home and stayed out of trouble.
Here's where it gets interesting. There are many people like Mr. Gilbert in America's federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences. If the "floodgates" were opened, too many others — mostly poor, mostly black — would have to be released. The Obama administration's fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called "a fear of too much justice," is the real justification.
In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the "finality" of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal. A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.
Judge James Hill, then an 87-yearold senior judge on the appellate court in Atlanta, wrote a passionate dissent. Judge Hill, a conservative who served in World War II and was appointed by Richard M. Nixon, called the decision "shocking" and declared that a "judicial system that values finality over justice is morally bankrupt." Judge Hill wrote that the result was "urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice." Judge Hill concluded: "The government hints that there are many others in Gilbert's position — sitting in prison serving sentences that were illegally imposed. We used to call such systems 'gulags.' Now, apparently, we call them the United States."
Two years later, the Justice Department used a similar tactic to overturn an entirely different federal appellate court decision that could have freed thousands of prisoners convicted of nonviolent crack cocaine offenses — again, mostly impoverished and mostly black — on the grounds that their sentences were discriminatory and unjustifiable. The administration again did its work without fanfare in esoteric legal briefs, even as the president publicly called the crack-cocaine sentencing system "unfair."
In 2013, several years after sending him back to prison, Mr. Obama granted Mr. Gilbert clemency, and the president has recently won praise for doing the same for several dozen other prisoners of the war on drugs....
But Mr. Obama must take steps to further undo the damage that he has done. He should use his clemency power to release all those currently held in a federal prison on an illegal sentence. And he should appoint a permanent special counsel whose job would be to review new laws and federal court cases on a continuing basis to identify and release other prisoners whose sentences retroactively become clearly unlawful. That the Department of Justice and Bureau of Prisons have never created such a position is an outrage. If we fail to demand change now, this moment for justice may be lost.
I very much like this author's suggestion that DOJ and BOP have special counsel who would seek to identify and advocate for the release of those currently held in a federal prison on an illegal sentence. But, as a matter of substance, given that vast majority of federal prisoners sentenced before the 2005 Booker ruling were sentenced in violation of the Sixth Amendment, the author is arguably asserting that it is unjust that any federal prisoner is still serving any pre-Booker guideline sentence (let alone any other sentence impacted by any of the many pro-defendant Supreme Court sentencing rulings of the last decade).
Even more troublesome, as a matter of process, DOJ has not really been "working behind the scenes" or using any novel "tactic... in esoteric legal briefs" in order to keep prisoners behind bars based on illegal sentences. Rather, DOJ has been just doing its job, namely seeking to faithfully execute the laws duly enacted by Congress and interpretted by the courts. In the Gilbert case and in the other cases referenced in this op-ed, the real "villian" in these complicated legal stories is not really DOJ, but the text of the AEDPA and the Fair Sentencing Act which DOJ is duty-bound to seek to faithfully apply.
This op-ed is not entirely off-base for suggesting that DOJ could be more inclined to read federal statutes and court rulings in a more defendant-friendly way. But, especially in recent years, DOJ under the Obama Administration has actually been pretty willing to help prior-sentenced defendants get an extra day in court. For example, after a few lower courts ruled that the FSA's lower crack mandatory minimums applied to "pipeline cases," DOJ changes its litigation arguments to a more defendant-friendly position. In addition, Obama's DOJ has generally endorsed retroactive application of defendant-friendly guideline amendments. And, most recently, DOJ appears to be taking a pro-defendant stance on the broad retroactivity of the Supeme Court's recent constitutional rulings in Miller concerning juve LWOP sentences and Johnson concerning ACCA sentences.
As regular readers know, I pull few punches when it comes to criticizing the Obama Administration and its Justice Department when making what I view as misguided discretionary decisions concerning the application and enforcement of federal sentencing laws and procedures. But this op-ed, rather than highlight fundamental problems with laws like AEDPA and court jurisprudence that gives excessive weight to sentence finality, seems problematically eager to suggest a star-chamber deep inside Main Justice has Obama Administration officials twirling their mustashes while devising esoteric tactics for keeping innocent people in prison for as long as possible.
I do not want to unduly criticize this op-ed because I have long been motivated by the same concerns as the author concerning courts having ample means to remedy problematic prior-imposed prison sentences. But the core problem is not really Obama's DOJ and its litigation positions, but the laws put in place by Congress and interpretted by the courts which largely demand that DOJ take many of its seemingly hard-hearted litigation positions.
Some (of many) prior posts on sentencing finality:
- "Re-Balancing Fitness, Fairness, and Finality for Sentences"
- Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett arguments
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
- Is it fair to read the Constitution as evidence the Framers were not fans of finality?
- Form, function and finality of sentences through history: the Founding Era
- Form, function and finality of sentences through history: the Rehabilitative Era
- Form, function and finality of sentences through history: the Modern Era
- Conceptual considerations for differentiating sentence finality and conviction finality
August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)
"Can a Federal Prisoner Be Too Old to Jail?"
The title of this post is the headline of this notable new National Journal article. Here are excerpts:
When you're locked in federal prison, how old do you have to be to count as "aging"?
That's the question two federal agencies are grappling over, and the answer they pick will determine how the government spends more than $800 million in public funding for prisons. And for tens of thousands of federal inmates, it could mean the difference between becoming eligible for a late-life release program and spending their twilight years behind bars.
The Federal Bureau of Prisons is struggling to adjust to an aging prison population, a product, in part, of criminal-justice reforms of the late 1980s that dramatically reduced federal parole and imposed mandatory minimum sentences for some offenses. In fiscal 2013, the Federal Bureau of Prisons spent nearly 20 percent of its $6.9 billion budget to incarcerate inmates aged 50 and older. And without a policy intervention, those costs are set to rise: Inmates aged 50 and older make up the fastest-growing segment of the prison population, according to Justice Department Inspector General Michael Horowitz.
To meet those costs, the Bureau of Prisons is requesting a 6.1 percent increase in funding for fiscal 2016, an increase from the bureau's $6.9 billion budget in 2015. But in a report released in May, the Justice Department Office of the Inspector General suggested the Bureau of Prisons consider an alternative solution: expand a "compassionate-release" program that reduces the term of imprisonment for elderly inmates.
To be eligible for the reduced sentencing program, inmates must have "chronic or serious medical conditions relating to the aging process" that "substantially diminish their ability to function in a correctional facility" for which "conventional treatment promises no substantial improvement," according to a statement from the Bureau of Prisons. They must also have served more than half of their sentence. For inmates looking for early release under nonmedical circumstances, the time-served bar is higher: "the greater of 10 years or 75 percent of their term."...
But for any of the above criteria to be considered, the inmate must be aged 65 or older. The Inspector General report did not explicitly call on the Bureau of Prisons to lower the limit in its May report. Instead, it recommended the bureau reconsider the age bar and noted the potential advantages of setting it at age 50.
The lower threshold would cut incarceration costs and relieve prison overcrowding without significantly increasing recidivism rates, the report said. The report notes several ways in which prisoners 50 and over differ from the rest of the prison population. Older inmates cost an average of 8 percent more to confine, but they are also less likely to end up back in prison after release. While the recidivism rate among all prisoners is 41 percent, for those released after age 50, the rate falls to 15 percent.
According to the Inspector General report, lowering the threshold age from 65 to 50 and instituting a 5 percent release rate for only those inmates in minimum or low-security institutions or medical centers could reduce incarceration costs by approximately $28 million per year. Federal prisons with the most aging inmates spent "five times more per inmate on medical care" and "14 times more per inmate on medication" than institutions with the fewest aging inmates, the report said.
The 65-or-over bar for the program is relatively new, set in 2013 in an effort to clarify the release program's eligibility criteria following a separate Inspector General report released earlier that year.... For now, it's unclear whether the Bureau of Prisons will lower the minimum age for its compassionate-release program. In its response to the May Inspector General report, the agency said it would "raise the issue with relevant stakeholders for further discussion."
August 18, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Monday, August 17, 2015
US Sentencing Commission releases new data on retroactive application of "drugs -2" guideline amendment
I just noticed on the US Sentencing Commission's website this notable new document titled "2014 Drug Guidelines Amendment Retroactivity Data Report." This part of the report's introduction provides the basic back-story for the data which follow:
On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that revised the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the drug or chemical quantity tables in sections 2D1.1 and 2D1.11 of the Guidelines Manual incorporate the statutory mandatory minimum penalties for drug trafficking offenses (Amendment 782). Specifically, the amendment reduced by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties, resulting in corresponding guideline ranges that include the mandatory minimum penalties, and made conforming changes to section 2D1.1. Amendment 782 became effective on November 1, 2014.
On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782 beginning on the effective date of the amendment. The Commission also voted to require that courts not release any offender whose term of imprisonment was reduced pursuant to retroactive applications of Amendment 782 prior to November 1, 2015. To effectuate these decisions, the Commission promulgated Amendment 788, which added Amendment 782 to the list of amendments in section 1B1.10 (Reduction in Term of Imprisonment as a Result of an Amended Guideline Range)(Policy Statement) that apply retroactively. Amendment 788 also added a new special instruction to section 1B1.10 requiring that the effective date of all orders reducing a term of imprisonment pursuant to retroactive application of Amendment 782 be November 1, 2015 or later. Amendment 788 became effective on November 1, 2014.
The data in this report represents information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through July 24, 2015 and for which court documentation was received, coded, and edited at the Commission by August 3, 2015.
The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, approximately 13,000 federal prisoners have had their federal drug prison sentences reduced by an average of nearly two years.
So, given the (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers close to one billion dollars. Kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.
August 17, 2015 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Sunday, August 16, 2015
"Sex Offenders Locked Up on a Hunch"
The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:
The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed. You can't be punished simply because you might commit one someday. You certainly can't be held indefinitely to prevent that possibility.
And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country. This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.
The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others. But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....
In a decision in June, a federal judge ruled that Minnesota's civil-commitment law for sex offenders violates the Constitution. Federal District Judge Donovan Frank said the law imposes "a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system." For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person's likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.
Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison. This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years. During that time, not one person has been released from the program unconditionally.
A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger. On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he "may demand a more forceful solution."
Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual reoffense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported). In addition, while some states' laws make it easier for detainees to earn their way out, 30 states have no civil-commitment laws at all, and there is no evidence that a state's sexual-violence rate is affected by whether it has such a law....
Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.
August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)
Friday, August 14, 2015
In Ohio, "State prisons chief calls for softened hearts"
The quote in the title of this post is the headline of this local AP story about notable recent comments from the Director of Ohio's Department of Rehabilitation and Correction. Here are the details:
Ohio's prisons chief is calling for more compassion toward wrongdoers as he continues a push to reduce the state's inmate population. Too often an "us vs. them" mentality gets in the way of instituting programs to prevent people from going to prison and to keep former inmates from returning, corrections director Gary Mohr told a legislative prison-inspection committee on Thursday in remarks that at times were closer to a sermon than a speech.
"Our hearts need to be softened to some degree," said Mohr, director of the Department of Rehabilitation and Correction. "We have to think about the sense of forgiveness." When Mohr started his prisons career 41 years ago, Ohio had 8,300 inmates in seven prisons, including 291 female inmates. The total now is holding steady at about 50,000 in 27 prisons, including 4,200 female prisoners.
The state's incarceration rate was 5.3 per 100,000 citizens, compared with 68.1 today, said Mohr in a 40-minute speech to the bipartisan Correctional Institution Inspection Committee. Mohr is also dissatisfied that 1 in 4 state employees now work in adult corrections.
Society's tough-on-crime attitude doesn't match statistics showing violent crime at historic lows, he added. But Mohr also sees signs of optimism as commitments from the state's biggest counties drop thanks to the growth of community alternatives in urban areas. The next challenge is extending such programs to the 82 counties where commitments have increased. The state is taking advantage of programs seeking to better integrate prisoners into society, as well, Mohr said. And the expansion of Medicaid will help inmates as they re-enter communities.
Among other issues Mohr said:
• 8,400 Ohio inmates spend less than a year in prison, a short period of time likely better served in communities in some form.
• 1 in 4 inmates is a probation violator, a trend that needs to be reversed by giving judges more discretion when ex-offenders make mistakes.
• The high population of some Ohio prisons raises security concerns.
Under Gov. John Kasich, the state has made efforts to slow the inmate population by easing penalties on first-time offenders, providing some early-release opportunities and boosting community-based options. At the same time, the state's painkiller- and heroin-addiction epidemic has led to a rash of thefts, burglaries and other crimes that have increased prosecutions.
August 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Tuesday, August 11, 2015
"Buying Access: How Corporations Influence Decision Makers at Corrections Conferences, Trainings, and Meetings"
The title of this post is the title of this new report issued by In the Public Interest. Here is the report's executive summary:
Private corrections companies, which contract with corrections departments and facilities to oversee and provide services to incarcerated people, make up a multibillion-dollar industry. Every year, they devote resources to building influence with decision makers in order to find and capitalize on new business opportunities. One key avenue of influence is through professional corrections associations, which are non-profit organizations that support corrections officials, including wardens, administrators, state Department of Corrections staff, sheriffs, and others through events, trainings, and public policy advocacy.
This report first details how companies spend millions of dollars sponsoring conferences, paying vendor fees, and providing other funding to gain access to the professional corrections associations. This report then shows how corrections companies leverage this access in ways that can influence decision makers and benefit the companies' bottom lines.
Considering corrections companies' track records of providing low-quality services that harm prisoners, communities, and taxpayers, the influence they exert through professional corrections associations is cause for concern.
The research in this report is based on limited information that professional corrections associations make publicly available. Consequently, the report's findings constitute only a portion of the total contributions made by companies and the subsequent opportunities they receive to influence decision makers.
Private companies make contributions to professional corrections associations. In 2014, sponsors, vendors, corporate partners, and other non-individual entities contributed at least $3 million to five of the largest professional corrections associations, including the American Correctional Association, the American Jail Association, the Association of State Correctional Administrators, the Corrections Technology Association, and the National Sheriffs' Association.
In return, corrections contractors are able to build relationships with and influence decision makers in key ways:
Corrections companies send executives and staff to professional corrections association conferences to meet decision makers. Many companies receive lists of attendees, allowing the corporate staff to target certain corrections officials.
Corrections companies lead trainings and workshops at conferences. Often times, companies will directly market goods and services.
Corrections companies host conference events where their executives and marketing staff meet with and give speeches to corrections officials.
Corrections companies market their products and services at conference vendor booths to identify potential government customers and generate leads.
Corrections companies advertise on conference materials, such as the program books, hotel room key cards, tote bags, and take-home mugs. This marketing encourages officials to consider the companies' products and services when making purchasing and outsourcing decisions.
August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Urban Institute creates intriguing on-line "Prison Population Forecaster"
I just learned about this notable new on-line resource from the Urban Institute, which it calls "The Prison Population Forecaster." Here is how the tool is described at the site:
Roughly 2.2 million people are locked up in prison or jail; 7 million are under correctional control, which includes parole and probation; and more than $80 billion is spent on corrections every year.
Research has shown that policy changes over the past four decades have put more people in prison and kept them there longer, leading to exponential growth in the prison population even while crime has dropped to historic lows.
But despite widespread agreement that mass incarceration is a serious problem, the national conversation is light on details about what it will take to achieve meaningful and sustainable reductions. What do states actually need to do roll back their prison populations by 10 percent? 20 percent? 50 percent?
To advance the policy conversation, decisionmakers and the public need to know the impact of potential policy changes. Our Prison Population Forecaster can estimate the effect, by state, of policies that aim to reduce prison admissions and length of stay for the most common types of offenses.
The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.
Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.
This forecasting tool paves the way for a more productive conversation about the need for tailored reforms that address the unique drivers of mass incarceration in each jurisdiction.
August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Friday, August 07, 2015
"What We Learned From German Prisons"
The title of this post is the headline of this notable New York Times op-ed authored by Nicholas Turner, president of the Vera Institute of Justice. and Jeremy Travis, president of John Jay College of Criminal Justice. Here are excerpts:
Earlier this summer, we led a delegation of people concerned about the United States criminal justice system to visit some prisons in Germany and observe their conditions. What we saw was astonishing.
The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers. They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs...
This is an encouraging moment for American advocates of criminal justice reform. After decades of callousness and complacency, the United States has finally started to take significant steps to reverse what a recent report by the National Research Council called a "historically unprecedented and internationally unique" experiment in mass incarceration. Congress, in a bipartisan effort, seems prepared to scale back draconian federal sentencing laws. Many states are making progress in reducing their prison populations. And President Obama, in a gesture of his commitment to this issue, last month became the first American president to visit a federal correctional facility.
The delegation that we took to Germany represented the emerging national consensus on this issue. It included a Democratic governor; corrections officials from across the political spectrum; chief prosecutors; formerly incarcerated individuals; a liberal scholar of race and criminal justice; and representatives from Right on Crime and the Charles Koch Institute, conservative groups that advocate reform, as well as the evangelical Christian group Prison Fellowship.
But for all the signs of progress, truly transformative change in the United States will require us to fundamentally rethink values. How do we move from a system whose core value is retribution to one that prioritizes accountability and rehabilitation? In Germany we saw a potential model: a system that is premised on the protection of human dignity and the idea that the aim of incarceration is to prepare prisoners to lead socially responsible lives, free of crime, upon release.
While the United States currently incarcerates 2.2 million people, Germany — whose population is one-fourth the size of ours — locks up only about 63,500, which translates to an incarceration rate that is one-tenth of ours. More than 80 percent of those convicted of crimes in Germany receive sentences of "day fines" (based on the offense and the offender's ability to pay). Only 5 percent end up in prison. Of those who do, about 70 percent have sentences of less than two years, with few serving more than 15 years.
The incarcerated people that we saw had considerable freedom of movement around their facilities and were expected to exercise judgment about how they used their time. Many are allowed, a few times a year, to leave the prison for a few hours or overnight to visit friends and family. Others resided in "open" facilities in which they slept at night but left for work during the day. Solitary confinement is rare in Germany, and generally limited to no more than a few days, with four weeks being the outer extreme (as opposed to months or years in the United States).
The process of training and hiring corrections officers is more demanding in Germany. Whereas the American corrections leaders in our delegation described labor shortages and training regimes of just a few months, in the German state of Mecklenburg-Western Pomerania, less than 10 percent of those who applied to be corrections officers from 2011 to 2015 were accepted to the two-year training program. This seems to produce results: In one prison we visited, there were no recorded assaults between inmates or on staff members from 2013 to 2014.
Germans, like Americans, are greatly concerned with public safety. But they think about recidivism differently. During our visit, we heard prison professionals discussing failure in refreshingly unfamiliar terms: If, after release, an individual were to end up back in prison, that would be seen as a reason for the prison staff members to ask what they should have done better. When we told them stories of American politicians who closed a work-release or parole program after a single high-profile crime by a released inmate, they shook their heads in disbelief: Why would you close an otherwise effective program just because one client failed?...
The first article of the German Constitution reads, "Human dignity shall be inviolable." Granted, our own Constitution bans cruel and unusual punishment and protects individuals against excessive government intrusions. As was noted by the Supreme Court justice Anthony M. Kennedy in a landmark 2011 opinion ordering California to reduce its prison population: "Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment."
These words hold much promise, but currently they have far too little impact on actual conditions in American prisons. In Germany, we found that respect for human dignity provides palpable guidance to those who run its prisons. Through court-imposed rules, staff training and a shared mission, dignity is more than legal abstraction.
The question to ask is whether we can learn something from a country that has learned from its own terrible legacy — the Holocaust — with an impressive commitment to promoting human dignity, especially for those in prison. This principle resonates, though still too dimly at the moment, with bedrock American values.
August 7, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (2)
Thursday, August 06, 2015
Is it now ungodly to oppose significant sentencing and prison reform?
The question in the title of this post is prompted by this notable recent Crux commentary authored by Jacob Lupfer headlined "There's a truly religious consensus on prison reform." Here are excerpts:
In an era when most faith groups' political priorities align predictably with the two major parties, it is refreshing to behold a truly diverse religious consensus on an issue....
The budget-busting prison-industrial complex was politically popular for a time, but in the past decade the pendulum has begun swinging the other way. Harsh sentences, particularly for nonviolent drug offenders, created unsustainable fiscal pressures. States simply cannot afford to house more prisoners and pay the salaries and benefits of employees to supervise and care for them.
Already, states are taking steps to spend less on "corrections." Fiscal conservatives now view prisons as overly expensive, hugely inefficient, bloated bureaucracies. Yet Christians and other people of faith see problems, too.
America's denominations and faith organizations are calling for reform. Our vast criminal justice system emphasizes punishment over rehabilitation, while our faith traditions preach redemption. Citing Isaiah 61, Jesus announced that his gospel would include "release for the captives" (Luke 4:18). It seems wrong for a Christian conscience to support needless incarceration.
Catholics were early leaders in promoting restorative justice, the idea that communities must help ex-offenders re-enter society in healthy and productive ways. The US Conference of Catholic Bishops issued a major pastoral statement in 2000 that placed criminal justice issues in the context of social ills, including family breakdown, violence, racial disparities and the perverse incentives of for-profit prisons.
Once a powerhouse in ecumenical Christian political influence, the National Council of Churches has reinvented itself as a smaller, more focused agency. Yet it has made mass incarceration its top advocacy priority. NCC President Jim Winkler has a provocative idea. "If churches want to see revival," he told me last year, "they should pick up released prisoners and help reintegrate them into their communities." Criminal justice reform is not just an issue. It is essential to the gospel: Redeemed sinners proclaiming mercy in the name of Jesus Christ....
Leaders from Catholic, mainline, and black Protestant traditions have been sounding this refrain for years. But the growing consensus among white evangelicals and Republican officeholders may finally make sentencing reform an urgent and truly bipartisan imperative. The National Association of Evangelicals, known to be more active on non-sex-related issues than other religious conservatives, has spoken strongly of the need for criminal justice reform....
Until recently, disparate groups have worked on the issue largely independently. That is changing. In 2014, Congress appointed a committee to study the feasibility of reform among federal prison populations, whose growth threatens other federal law enforcement and funding priorities. The committee is called the Charles Colson Task Force on Federal Corrections. Earlier this year, the task force sought input from faith leaders and saw unprecedented agreement across traditions and enthusiastic support for reform....
Sentencing and prison policy is more easily seen as a boring bureaucratic issue. Even though millions are incarcerated, most Americans know zero or one person in prison. Yet faith communities are adding urgency to the imperative for prison and sentencing reform, even as they remain divided on the death penalty (for now).
In the end, fiscal constraints will force changes in prisons and sentencing if moral concerns do not. It seems better to make these changes out of a warm-hearted, merciful impulse than through cold fiscal realities. The faith community can credibly speak with one voice on criminal justice reform, and that voice must be heard.
August 6, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
"Toe Tag Parole: To Live and Die on Yard A"
The title of this post is the title of this new documentary that premired on HBO this week. Based on the few clips I have so far had a chance to watch, it looks like a valuable contribution to the broad on-going policy and constitutional debate over LWOP. Here is the film's synopsis via its HBO website:
America is the most punitive nation in the world, handing out historically harsh sentences that largely dispense with the concept of rehabilitation. Alan and Susan Raymond (Oscar® and Emmy® winners for HBO's "I Am a Promise: The Children of Stanton Elementary School") explore the reality of "the other death penalty" in TOE TAG PAROLE: TO LIVE AND DIE ON YARD A.
Featuring exclusive, unprecedented access, TOE TAG PAROLE: TO LIVE AND DIE ON YARD A was shot entirely at California State Prison, Los Angeles County, a maximum-security facility in the Mojave Desert.
In 2000, a California State Prison inmate serving Life Without Parole (LWOP) approached the warden to request a dedicated yard for men serving life sentences that would break the code of violence dominating prison life. The California Department of Corrections and Rehabilitation (CDCR) subsequently transformed Yard A at California State Prison into The Progressive Programming Facility, which inmates call The Honor Yard. The only one of its kind in the United States, this experimental prison yard is free of violence, racial tensions, gang activity and illegal drug and alcohol use.
TOE TAG PAROLE: TO LIVE AND DIE ON YARD A focuses on the 600 men living at The Progressive Programming Facility, who seek self-improvement and spiritual growth through education, art and music therapy, religious services and participation in peer-group sessions.
Although a 2012 U.S. Supreme Court ruling found mandatory sentencing of juveniles to Life Without the Possibility of Parole unconstitutional, those previously convicted still have to serve their sentences in some states. The film features interviews with three of the inmates – sentenced to life at ages 14, 16 and 17 – who describe growing up within the prison walls.
Ken Hartman, who beat a man to death at age 19 while drunk, and has been in prison for 36 years, says, "There's a progression that these things go through. People used to be stoned to death and then they were shot and then they were hung, they were electrocuted. Each step along the way always the argument is made that this is a better kind of death penalty. I'm sentenced to Life Without the Possibility of Parole. It's not better than the death sentence, because it is the death sentence." As the men of The Honor Yard say, "They will get out when they get their Toe Tag Parole," meaning death by incarceration.
August 6, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)
Tuesday, August 04, 2015
Urging Prez Obama to appoint a "new, visionary Bureau of Prisons head"
Three notable law professors, Robert Ferguson, Judith Resnik and Margo Schlanger, have come together to make this effective pitch in the Washington Post for Prez Obama to make one key appointment in his effort to reform the federal criminal justice system. The piece is headlined "With one decision, Obama and Lynch could reshape the criminal justice system: The President needs to appoint a new, visionary Bureau of Prisons head," and here are excerpts:
The current director of the Federal Bureau of Prisons recently announced his retirement. The job is not Senate-confirmed (though Congress can play a role; on Tuesday, the Senate Committee on Homeland Security and Governmental Affairs will be holding a hearing on the issue). Instead, Obama's Attorney General Loretta Lynch will choose the BOP's ninth head since its founding in 1930.
The decision matters a lot. The BOP's director runs one of the critical bureaucracies of the federal government. It houses more than 200,000 prisoners in more than 120 facilities across the United States. Under the leadership of some of its directors — such as James Bennett, who served from the late 1930s to the 1960s — the BOP set the nation's benchmark for smart criminal justice administration. Bennett promoted the Youth Corrections Act and vocational and education training, he became president of the American Correctional Association and he led the U.S. delegation to the UN Crime Commission. Bennett led the BOP to the forefront of efforts to help prisoners gain skills to return to their communities and to treat juveniles differently than adults.
Since Bennett's era, the BOP's leadership role has eroded. The BOP has imposed unduly harsh conditions on prisoners, failed to prevent sexual abuse, and refused to exercise discretion to house prisoners in community facilities close to their homes. The largest prison system in America needs to do better....
The BOP also has many available tools and a good deal of discretion to lower its prison population, but it has used those opportunities far too sparingly. The BOP does not place all eligible prisoners in residential treatment centers (halfway houses) at the earliest available dates, nor does the BOP use compassionate release — when the prisoner or a member of his or her family is dying — and other aspects of the 2007 Second Chance Act as much as it could. Using halfway houses more would put prisoners closer to home, where they can maintain ties to their families and communities and can gain avenues to employment. Given endemic racial and other disparities in our criminal justice system, these lost opportunities have a particularly harmful impact on poor minority urban communities.
The result of these many decisions, along with unduly harsh federal sentences which Congress is currently considering fixing, has been severe overcrowding. The BOP is 30 percent over capacity, which makes keeping staff and prisoners safe significantly more difficult. With congestion comes risks of violence, and less access to services such as jobs and programs. And as prison populations age, the costs of medical care go up.
We know the BOP can do better, because many state correctional systems are making a variety of improvements in their approaches. State prison systems have reduced the population of those in isolation, created "gender-responsive" programming to suit the histories and challenges of women and men in prison, offered new work programs and improved mental health services. For example, Colorado, Maine and Washington have used careful analyses to substantially reduce the number of prisoners in solitary and shifted the treatment of those who remain, putting them back into structured and regular contact with other people.
When searching for the BOP's ninth director, the president and attorney general can look to a field of experienced innovators with demonstrated commitments to reform — decarceration, improved conditions of confinement, racial justice and gender equity. The president holds the prison door keys for federal prisoners whose sentences he commutes. His administration's choice for the new head of the BOP is critical to reform for those remaining inside.
August 4, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
"Drone drops drugs, tobacco in Mansfield prison yard, spurs fight"
The title of this post is the headline of this new article from my own Columbus Dispatch. Here are the (serious and amusing) details:
A drone deposited a package containing drugs and tobacco at the Mansfield Correctional Institution last week, sparking a fight among inmates in recreation yards. The State Highway Patrol is investigating the incident in a bid to determine who flew the drone over the prison and for whom the package was intended.
The drone came buzzing over the prison about 2:30 p.m. on Wednesday, although prison officials were unaware of its presence until video from surveillance cameras was reviewed after the brawl among inmates. Prison workers recovered the drone's deposit, which contained 5 ounces of tobacco, 2.3 ounces of marijuana and 0.2 of an ounce of heroin, according to a report. If half pure, the heroin amounted to about 140 individual doses.
State prisons have encountered drones previously, said Department of Rehabilitation and Correction spokeswoman JoEllen Smith. She could not immediately provide details on the prior flyovers. "Our agency's top security administrators are taking a broad approach to increase awareness and detection of unmanned aerial systems," Smith said....
During the scuffle, the package was thrown over a fence from the north recreation yard to the south yard, the report said. A sweep of the area found the package hidden in the equipment room of the south recreation yard. Officers also searched roofs and other areas for any other packages, but found nothing.
Corrections officers used pepper spray to douse the fighting and about 200 prisoners from both the north and south recreation yards were carefully searched before being returned to their cells. Nine inmates involved in the scramble for the package were placed in solitary confinement. There were no injuries to prisoners or prison employees. The close-security prison contains about 2,700 inmates.
Prior related post:
August 4, 2015 in Prisons and prisoners | Permalink | Comments (0)
AG Lynch and Secretary Duncan make pitch for Pell Grant pilot program for federal prisoners
Attorney General Loretta Lynch and Secretary of Education Arne Duncan have this notable new USA Today op-ed under the full headline "To cut crime, turn jailbirds into bookworms: We need a prison to productivity pipeline." Here are excerpts:
Few interventions have been shown to reduce recidivism and prepare people in prison to lead law-abiding, productive lives like access to quality postsecondary education and training. The benefits of investing in these opportunities, which also include improved employment outcomes, extend to the individual and to society. In a study funded by the Justice Department's Bureau of Justice Assistance, RAND Corporation estimated that incarcerated individuals who participate in correctional education are 43% less likely to return to prison within three years. And for every dollar invested in correctional education programs, five dollars are saved on re-incarceration costs. A recent report from the President's Council on Economic Advisors notes the annual cost of incarceration for a single juvenile is over $100,000 — almost twice as high as tuition, room and board and fees at the most expensive college in the country and nearly 100 times as expensive as a year of intensive mentoring.
Nearly every person behind bars will one day leave prison — approximately 700,000 annually. Setting these Americans up for success is smart economics and a critically important investment in our future.
Unfortunately, for many incarcerated individuals, this type of life-changing opportunity is unavailable. In 1994, Congress amended the Higher Education Act to ban incarcerated individuals in federal and state penal institutions from accessing Pell Grants, which could be used to help qualified inmates pay for college classes or training. This ban was passed despite the fact that higher education has been shown to reduce recidivism and despite the fact that incarcerated students made up less than 1% of all Pell Grant recipients.
The Obama administration has taken an important step toward helping people in prison contribute to the economy, transition back into their communities and stay out of the justice system after they reenter society. The Department of Education announced a new Pell Grant Experimental Site program that will allow a limited number of incarcerated individuals to be eligible to receive Pell Grants to pay for education and training programs from colleges and universities. The Department of Justice is providing technical assistance to the correctional facilities under the pilot program. We will test how restoring Pell Grant eligibility could affect educational and other outcomes. This pilot will not prevent any eligible Pell recipient from receiving a grant. What we learn will inform our efforts — and the efforts of states and localities — moving forward in this area....
By preparing these learners to achieve their academic and career goals, we strengthen the families and communities that depend on their success. And that is fundamentally good for America.
August 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)
Monday, August 03, 2015
Two distinct notable tales of crimes and punishment via the Grey Lady
The New York Times starts the work week off with these two intriguing lengthy pieces about two different stories of crimes and punishment:
"Onetime Allies on Wall Street Have Uneasy Prison Reunion After Insider Trading Trials"
August 3, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Prisons and prisoners, White-collar sentencing | Permalink | Comments (1)
Sunday, August 02, 2015
Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform." Here are excerpts:
Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased alongside it, placing a heavy burden on American taxpayers. According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable. Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.
This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness. The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.
The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s. While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system. Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.
Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society. A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both. An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.
Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there. This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.
While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....
Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform. In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.
SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision. The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.
Our system cannot continue on its current trajectory. It's not only fiscally unsustainable, but morally irresponsible. Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.
Prior related posts:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
August 2, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)
Saturday, August 01, 2015
Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"
The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:
The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, "studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness." However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.
Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.
Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses. According to recent data, 1.5 million cases are prosecuted in juvenile court annually. Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities. Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards. Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.
"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences? Why are these groups overrepresented within our courtrooms and prisons? Can we identify and propose strategies for reform?
August 1, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)
Thursday, July 30, 2015
"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"
The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller's rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.
July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Tuesday, July 28, 2015
Obama Administration talking up restoring Pell grants for incarcerated
As reported in this Wall Street Journal article, the "Obama administration plans to restore federal funding for prison inmates to take college courses, a potentially controversial move that comes amid a broader push to overhaul the criminal justice system." This strikes me as big (and potentially controversial) news, and here are more of the details:
The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.
Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens....
A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn't. Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.
Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren't yet clear, such as which institutions and what types of convicts would be allowed to participate.
An Education Department spokeswoman declined to comment. Asked Monday whether the agency would restore Pell grants for prisoners, Mr. Duncan told reporters, "Stay tuned."
Stephen Steurer, head of the Correctional Education Association, an advocacy group, said two Education Department officials told him at a conference early this month the agency was moving to restore Pell grants for prisoners and allow many colleges and universities to participate. Money from the grants would directly reimburse institutions for the cost of delivering courses in prisons rather than go to prisoners, Mr. Steurer said.
"It will be substantial enough to create some data and to create enough information for some evaluation," said Rep. Danny Davis (D., Ill.), who is co-sponsoring a bill with Rep. Donna Edwards (D., Md.) to permanently restore Pell grants for prisoners. "I think the political landscape has actually changed since the 1990s," said Ms. Edwards. "We haven't really been able to get a handle on recidivism. We have to present some training and opportunities. These are programs that work."
She said her bill would cost relatively little up front—in the tens of millions of dollars—while having the potential to cut societal costs over the long term by reducing recidivism rates. Maryland spends nearly $40,000 a year per prisoner, she said.
But spending tax dollars on college for prisoners strikes many as an affront to families that have borrowed heavily in recent years to cope with skyrocketing college costs, causing student debt to soar to $1.3 trillion. "If we really want to keep people out of prison, we need to promote education at younger ages," said Rep. Chris Collins (R., N.Y.).
Last year, New York Gov. Andrew Cuomo tabled a plan to use state dollars on in-prison college courses because of opposition from lawmakers. But in California, Gov. Jerry Brown signed legislation in June that includes $12 million to promote statewide priorities, including college classes in state prison, said state Sen. Loni Hancock, whose 2014 bill paved the way for an agreement between California corrections officials and the chancellor of the state's community colleges. Ms. Hancock said classes could begin as soon as this fall.
July 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)
Monday, July 27, 2015
Making the case that sentencing reform should (and must) include "violent" offenders
Two different law professors have recently published, in two different major papers, two important new commentaries calling for the modern sentencing reform movement to look beyond just so-called non-violent offenders. Here I will provide links to and snippets from these pieces while suggesting both should be read in full:
In the Los Angeles Times, Andrea Roth's op-ed is headlined "Let's consider leniency for many 'violent' offenders too":
The White House's push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won't get them very far.
The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country....
Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled "violent" under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a "violent" crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a "violent" crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a "crime of violence" under the federal sentencing guidelines. In short, "violent crime" is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered "violent," as Americans colloquially use that term.
Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.
In the Washington Post, John Pfaff's opinion piece is headlined "For true penal reform, focus on the violent offenders":
It's true that nearly half of all federal inmates have been sentenced for drug offenses, but the federal system holds only about 14 percent of all inmates. In the state prisons, which hold the remaining 86 percent, over half of prisoners are serving time for violent crimes, and since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders. Less than a fifth of state prisoners — 17 percent — are serving time for nonviolent drug offenses. And contrary to Obama's claim, drug inmates tend to serve relatively short sentences. It is the inmates who are convicted of violent crimes who serve the longer terms.
Now, to be clear, not all violent offenses are especially harmful. But a significant fraction of those in prison for violent crimes are there for serious violence: murder, aggravated assault, armed robbery. Moreover, many officially nonviolent inmates have histories of violence.
In other words, for all the talk about nonviolent offenders, a majority of our prisoners have been convicted of a violent act, and even more have some history of violence. And because no one thinks we should set every drug or other nonviolent offender free, at some point we are going to have to reduce the punishments that violent offenders face if we really want to cut our breath-taking prison population down to size.
But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.
That's what made Obama's commutations and policy speeches so disappointing. Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact. What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.
July 27, 2015 in Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (10)
Sunday, July 26, 2015
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.
July 26, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14)
Friday, July 24, 2015
"Convicted Republicans Plead for Mandatory Minimums Changes"
The title of this post is the hedline of this notable new Roll Call piece. Here are excerpts:
Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....
Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is "time that the federal government catches up," Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.
Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have "worn out my welcome" in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.
Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.
Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was "incumbent" that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.
Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. "You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license," Kerik said.
"Idle hands are the devil's playground," echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.
Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.
"It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later," Conyers stated Wednesday. "It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system."
Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are "entirely political" and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, "but there's no restraint."
July 24, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Thursday, July 23, 2015
Is it a big concern when a Prez candidate gets "big money" from private prison companies?
The question in the title of this post is prompted by this local story from Florida headlined, "Marco Rubio is Getting Big Money from For-profit Prison Companies." Here are excerpts:
According to Open Secrets, the second-largest for-profit prison operator in the country, GEO Group, is one of the top contributors to Marco Rubio's presidential campaign. Between 2013 and 2014, GEO Group gave Rubio $41,500, more than any other presidential candidate. The group is the ninth highest contributor to Rubio's campaign.
Is that a problem? Prison reform advocates think so, pointing to Rubio's actions as an elected official that have helped for-profit prisons — including a $110 million state contract that went to GEO back when he was Speaker of the Florida House.
"On a system that makes them wealthier the more people there are in jail, the only reason they would lobby these sort of things is because they expect their money to have a financial return," says Paul Kruger, executive director of Florida's chapter of Citizens United for Rehabilitation of Errants, a prison reform advocacy group....
The presidential contender's ties to the for-profit industry are not new. And prison reform activists have always been wary of the lucrative connection between for-profit prisons and politics. But Rubio's ties are gaining steam online thanks to a petition demanding that Rubio cut ties with GEO Group for good now that he's running for president.
"Your ties to the prison industry go back to your years in the Florida state legislature and they're disturbingly close," the petition states. "A presidential candidate should not be associated with imprisoning people for profit. You must break ties with the for-profit prison industry."
The for-profit prison industry is big business, raking in almost $3 billion a year nationally. Boca Raton-based GEO Group operates prisons throughout the southeast and since 2009 have added 7,600 new prison beds and grown by 10 percent.
Advocates point out that that Rubio's ties go beyond just taking donations. Back in 2006, Rubio hired Donna Arduin as an economic consultant. She's a former trustee for GEO Group. In 2011, after being elected a Florida state senator, Rubio hired Cesar Conda as his chief of staff. Conda is the co-founder of Geo Group's main lobbying firm, Navigators Global. While working under Rubio, Conda was still earning $150,000 from Navigators Global from a stock buyout agreement. In 2014, Conda went to lead Rubio's PAC, Reclaim America. It was during Conda's management that GEO Group became one of Rubio's top-10 contributors. Now, Conda is working back at Navigators Global....
Kruger contends that the companies are fueling a prison-industrial complex as they funnel big bucks into politics. He believes that Rubio — or any elected official in politics — shouldn't accept money from for-profit prison groups. "They don't do it because the guy is handsome," Kruger says. "They want to decide who goes to jail and for how long."
July 23, 2015 in Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.
July 23, 2015 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)