As I noted a few weeks ago, I am officially placing this blog on hiatus as I am moving onto some new endeavors. But there are two pieces of good news. First, I am happy to announce that a new blog, “Evolving Standards of Decency,” will be picking up where I left off and covering prisoners’ rights litigation. This new blog is spearheaded by Margaret R. Moreland, a lawyer and law librarian at the Pace University Law Library, and aims to “creat[e] a forum for discussing the constitutional rights of those in America’s prisons and jails.” I hope you will bookmark the site and check it often. 

Second, in the (relatively short) time since I began this blog, I have noticed a significant uptick in mainstream press coverage of mass incarceration in America. Perhaps this is just because the economic downturn has revealed the high cost to the state and federal governments of maintaining one of the world’s largest prison populations (as a percentage of the overall population), but in any event, I’ve been glad to see these issues gain more prominence in public discourse. I should note that most of the news coverage of criminal justice issues that I read and linked to while maintaining this blog appeared in local and regional newspapers, whether Bob Ortega’s work at the Arizona Republic or the recent Times-Picayune series on Louisiana’s world-leading incarceration rate. It’s now easier than ever for far-flung folks like me to read local newspaper stories from around the country, and yet local newspapers everywhere are facing dire budget cuts. As newspapers continue to change and mutate in the digital era, I hope that we as a society will find a way to maintain local and regional watchdog reporting.

I will leave this blog up as a permanent archive (or anyway, as long as WordPress.com will host it), so posts will continue to show up in Google searches and the like (although of course, I can’t guarantee that all of the links to outside articles and sites will continue to work indefinitely). For the record, here are the Prison Law Blog posts that have received the most hits over the lifetime of the blog:

• Mass Incarceration: Breaking Down the Data by State
• Realignment in California: The Basics, Plus How Counties Are Preparing
• “Truly Appalling” (on California prison conditions litigation)
• “Wisconsin prison population 2.5 times larger than Minnesota’s“

I started this blog mainly for two reasons — to give myself a structured way to keep track of news and case law relevant to prison/jail legal and policy issues and to practice writing about these issues for a general readership not necessarily trained in law. The blog was great for helping me toward those goals, but more importantly, connected me with people who are interested in criminal justice policy around the country and from many walks of life — a benefit of blogging that I hadn’t even really expected going in.

Thanks so much to all of you who have read, linked, tweeted, Facebooked, emailed, blogged, and otherwise shared my posts. I hope that the blog has been (and, in its archived form, will continue to be) a useful resource. Although the blog has never attracted huge numbers (though there were the few days, for which I am grateful, when it was linked by heavy-hitters like Ta-Nehisi Coates or the Daily Dish), it has always received a steady readership including lawyers, academics, and journalists but also friends and family members of men and women who are in jail or prison. I hope that the thoughts and conversations sparked by this blog will continue at the new “Evolving Standards” blog, in the blogosphere more generally, and in your families, neighborhoods, schools, and communities.

Sara Mayeux

Louisiana is the world’s prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana’s incarceration rate is nearly triple Iran’s, seven times China’s and 10 times Germany’s. …

One in 86 adult Louisianians is doing time, nearly double the national average. Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation. Crime rates in Louisiana are relatively high, but that does not begin to explain the state’s No. 1 ranking, year after year, in the percentage of residents it locks up.

In Louisiana, a two-time car burglar can get 24 years without parole. A trio of drug convictions can be enough to land you at the Louisiana State Penitentiary at Angola for the rest of your life.

by Peter Wagner

New York City’s “stop and frisk” policing strategy is getting a lot of attention. A police officer notes a “reasonable suspicion,” whatever that is, and then stops the person, asks some questions and then often frisks him or her.

It’s not hard to see where allegations of racial profiling come from. It’s the subject of a class action lawsuit, and last week 20 people, including Cornel West, were convicted for a civil disobedience protest last year against stop and frisk.

“Stop and frisk” is a major NYC initiative that is growing:

The majority of the people being stopped and frisked are Black and Latino, and that’s been a consistent fact: 

A lot of the news coverage has been less than effective in explaining the racial disproportionality in New York City’s stop and frisk. For example, Blacks are 52% of stops, but 23% of the population. Latinos are 31% of stops, but 29% of the population. Whites are 9% of the stops and 33% of the population. The eyes of 90% of the readers of this paragraph have glazed over and I suspect that 100% of the people reading aren’t quite sure exactly what the significance is.

The most useful comparison is to compare the relative number of people in each racial and ethnic group who are stopped by the police in a given year. Now it’s quite clear just how big the problem is:

Blacks in New York City are 8 times as likely to be stopped by the police as Whites. And the disparity gets larger when we look at just stops that result in frisks:

And even larger still when we look at police stops that result in the use of force:

The disparity in the use of force isn’t warranted by differential rates of offending, as we found that Latinos and Blacks were more likely than Whites to experience the use of force without being arrested.

The different experiences of Blacks, Latinos and Whites with stop and frisk are no doubt part of why ending stop and frisk is a priority for Black and Latino voters, but not for politicians who want White support.

And what do New Yorkers get for giving up their civil liberties? It’s not a lot in the way of public safety. 93% of the stops in 2010 did not result in arrest, and the majority of the arrests were for petty offenses. And guns, the main justification for “stop and frisk”? Guns are found in a tiny portion of the stops, about 1 out of every thousand stops in 2011. And the trend isn’t positive. While the police point to the tiny annual increase in the number of gun seized, the percentage of stops that result in a gun being found is plummeting:

I have no doubt that good police work can find illegal guns. Wholesale “stop and frisk,” though undermines Black and Latino trust in the police without improving public safety. That’s a poor investment in police resources.

Mayor Bloomberg is famous for his big-business style fixation on data and on seeing a high return on investment. Yet, for some reason, he has been reluctant to hold policing strategies up to that same cost vs. results standard. Will his successors be any different?

[* Updated on May 18, 2012 to use Census figures that more closely correspond with how the NYPD assigns people to a race and ethnicity and to add graphs about the racial disparity in frisks and in the use of force.]

The author is Executive Director of the Prison Policy Initiative. This article is one in a series of short articles exploring under-discussed facts about the criminal justice system.

• “Prisons, Privatization, and the Elusive Employee-Contractor Decision,” by Alexander Volokh in the Emory Law Review
• “Forms of Deference in Prison Law,” by Sharon Dolovich in the Federal Sentencing Reporter
• “Slavery Revisited in Penal Plantation Labor,” by Andrea Armstrong in the Seattle University Law Review
• “Queering Prison Abolition, Now?,” a round-table at the American Quarterly
• “Against Law, for Order,” by Mike Konczal in Jacobin: touches on a lot of recent books related to crime, policing, and prison policy

Also, via Doug Berman, I noticed that the Yale Law Journal is running a prison law writing contest. If you are or have been in prison or jail, you may be eligible to enter.

A programming note: the blog has been slow this spring. This has been my way of “winding down.” I’ll actually be moving on to some new endeavors soon where for various reasons I won’t be able to blog, so I will be putting the blog on indefinite hiatus as of June 2012. I will leave the site up for archival purposes as long as WordPress will have it.

How, you might ask, can L.A. County do this — especially at a time when California’s realignment policy is shifting more responsibility to the county jails? The ACLU of Southern California, which has been suing L.A. County over its dismal jail conditions for years, explains:

[A] report [PDF here], by nationally-renowned corrections expert James Austin and based on data provided by Los Angeles County Sheriff Lee Baca, finds that Men’s Central Jail can be shuttered by safely releasing 3,000 low-risk, non-violent pre-trial and sentenced inmates into community-based supervision and education programs that will curb recidivism, and by increasing the capacity of the county-wide jail system by 2,000 beds through a repurposing of existing facilities.

James Austin may be familiar to readers of this blog, because he also provided the data crunching needed for Mississippi to shut down its horrific solitary confinement wing, “Unit 32“. I noted previously that he was also working with New Orleans to downsize its jails, though it appears his recommendations there have not been implemented. His firm has also consulted for a number of states and the federal Bureau of Justice Assistance. Consultants, advisers, policy analysts don’t have the flashiest jobs, and unlike celebrity activists and high-profile lawyers rarely become household names, but work like Austin’s is what will make it possible for local and state governments to dismantle mass incarceration — and, ideally, to do so in a way that avoids the Pyrrhic victories that Bob Weisberg and Joan Petersilia have warned of.

by Peter Wagner

The National Rifle Association is concerned that we aren’t using enough guns. An article in today’s New York Times explains that the National Rifle Association is pushing back against efforts to control gun ownership and use by advancing “Stand Your Ground” laws that actually encourage people to use their weapons. The laws expand the self-defense doctrine to make it easier for someone to shoot another person and claim “self-defense”. These laws are in the news due to the Trayvon Martin case, where an unarmed 17-year-old African-American was shot and killed by a Neighborhood Watch leader in Florida. Last night, after 6 weeks, the prosecutor finally announced that murder charges are being filed.

The NRA bumpersticker declares that guns aren’t the problem: “Guns don’t kill people, People kill people”. But it’s hard to deny that guns are facilitating the result. Internationally, the evidence is clear that nations with higher gun availability have higher gun homicide rates. (See page 43 of this UN report for a fascinating, if overly academic, chart showing the clear correlation.)

Within the U.S., the historical trend is quite clear. Check out this graph that matches the number of handgun homicides each year with the number of handguns produced: 

The gun lobby would rather not talk about the correlation between the production of handguns and dying. The evidence there is clear. So the question, then, is whether the gun lobby is trying to distract from the problems that guns cause, or are they trying to create them?

The author is Executive Director of the Prison Policy Initiative. This article is one in a series of short articles exploring under-discussed facts about the criminal justice system.

Actually, in the case at issue in this decision, the subject of the strip-search was erroneously arrested for something that isn’t even a crime: Albert Florence was arrested for not paying a fine that in fact he had paid, and in any event not paying a fine is not a crime under New Jersey law, it’s a civil infraction. As I noted previously about this case:

This line of cases should be extraordinarily troubling for civil libertarians. When you combine cases finding no Fourth Amendment violation when the police arrest and detain you even for very minor offenses — even offenses that aren’t actually arrestable offenses under state law — with cases finding no Fourth Amendment violation when jail guards strip-search you after booking on a minor offense, basically we’re giving the police a green card to find any pretext to have anyone they don’t like arrested, jailed, and strip-searched. Read the Atwater dissent, Part II, if you don’t think this could be a real problem.

I haven’t yet had time to read the full SCOTUS opinions, so perhaps I’ll have additional thoughts later, but you can find all the opinions and other materials here at SCOTUSblog.

Some Twitter reactions:

Last week, #SCOTUS conservatives so worried about liberty. Today, they allowed strip searches of any person arrested for any offense.—
Adam Winkler (@adamwinkler) April 02, 2012

Supreme Court okays body cavity searches for leash law violations. I'm only slightly exaggerating. nytimes.com/2012/04/03/us/…—
  (@radleybalko) April 02, 2012

Latest 5-4 decision from SCOTUS. I hope everyone likes strip searches: supremecourt.gov/opinions/11pdf… (h/t @scotusblog)—
Greg Lipper (@theglipper) April 02, 2012

Unfortunately, and as evidenced by the numerous comments that keep streaming in on an earlier post I did on realignment, there seems to be widespread confusion not just in the media, but also on the ground about how realignment is being interpreted and applied in particular counties. Perhaps this is because the state and/or the counties are not doing a good job of communicating the policy to the public, or because the policy itself has some gaps, or simply isn’t working well (or isn’t working as well everywhere), or… etc. Whatever the reason for the confusion, this makes it all the more problematic that, as Petersilia notes in the podcast, the realignment bill did not set aside funds for evaluating its implementation:

[W]e need a commission to investigate for the public record how the state found itself operating prisons that attract words like torture, cruel, inhuman, and degrading punishment. This is not Honduras where poverty, spiraling crime, and corruption are the order of the day, or Mexico, but we had prisons that belong in the same frame as recent news stories about the fire the killed hundreds in an overcrowded and chaotic Honduran prison (Guardian coverage here) and a murderous riot by one prison gang against another in Mexico to cover over an escape of elite gang members abetted by guards (coverage in the Guardian here).

Given the severity of the human rights problem in California’s prisons and its duration for more than two decades, retrospective documentation should lead to prospective preventive techniques. The commission could become a California Committee for the Prevention of Torture, or CAL CPT, modeled on the European CPT; a body of legal, medical, human rights, and criminological expert investigators with the authority to inspect any prison, mental hospital, or indeed any place of confinement, in order to warn state government of the potential for degrading conditions to form and how to prevent it.

The full post and more are at Simon’s always thought-provoking Governing through Crime blog.

The news for young black men is not good: they are disproportionately singled out for discipline in school, they are more likely to be stopped and frisked by New York City police officers, and according to Michelle Alexander in her book, “The New Jim Crow,” nearly one-third of black men are likely to spend time in prison at some point in their lives.

Would pulling back on draconian drug laws or legalizing marijuana be enough to fix this imbalance? What else needs to be done?