Sunday Reading, and a Programming Note

Here’s a roundup of some recent scholarship and online commentary about prison-related issues:

• “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.

Advertisement

Friday Roundup, Gopnik Edition

In lieu of a proper Friday Roundup, I’ll refer you to this week’s widely-discussed article in the New Yorker: Adam Gopnik’s “The Caging of America.” The article asks, “Why do we lock up so many people?” and works its way to an answer by way of reviewing several recent tours-de-force on crime and punishment in America: Michelle Alexander’s The New Jim Crow, Robert Perkinson’s Texas Tough, Bill Stuntz’s The Collapse of American Criminal Justice, and Franklin Zimring’s The City That Became Safe.

A few quick thoughts (forgive the bullet-point form):

• Overall this is a successful article: timely, thought-provoking, humane; it considers both the crime and punishment sides of the equation; most importantly it’s a handy one-stop read summarizing a lot of the recent writing and research on the topic of mass incarceration (destined for college classes around the nation, and a great link to share with your friends/family who don’t know much about the issue). Hopefully it’ll find a wide readership. A well-timed New Yorker article can sometimes change the national conversation on an issue (see, e.g., the influence of Atul Gawande on framing Obama’s health care agenda, or how that Jane Mayer article made the Koch brothers a household name).
• That said, nothing Gopnik says is news to anyone who already follows these issues. America currently incarcerates more people, as a percentage of its population, than does any peer nation and than did America at any previous point in its history. Even states we might think of as very liberal — Massachusetts, Connecticut, etc. — have incarceration rates that would be very high by European standards. I broke down the data state-by-state here.
• On a first quick read (I’ll have to return to the article when I have more time), I think that Gopnik, like his sources, too easily assigns a lot of causal significance to 19th-c. developments (the penitentiary movement, slavery, etc.) to explain a phenomenon — the boom in prison construction and the massive explosion in the incarcerated population — that really only began in the 1970s, and began rather suddenly. What’s the mechanism of continuity? But, this is perhaps an academic historical debate; I don’t have strong reservations with Gopnik’s account overall, and for better or worse, it’s certainly an effective summary of the literature. (Gopnik has a real talent for synthetic criticism, as evidenced earlier this month by his essay on the Spanish Inquisition.)
• Along those lines, I’m increasingly not sure I’m comfortable with how much of the rhetoric and commentary on mass incarceration uses statistical comparisons to slavery and the Gulag. I think there are a lot of methodological issues there (for one thing, there’s a constant slippage back-and-forth in these discussions between per capita and absolute numbers that I don’t think is fully theorized — this has also been a major critique of Steven Pinker’s recent book on violence) and I think the scale of American incarceration is enough of an evident problem on its own without needing to bring in historical analogies that are less than analytically rigorous. Moreover, the comparison to slavery actually undermines what ends up being Gopnik’s ultimate point. With slavery, we really did need to dismantle the entire social-political-economic system to end it. Gopnik’s conclusion in this piece is that, with mass incarceration, it’s precisely the opposite: we don’t need a revolution; “the intercession of a thousand smaller sanities” would be enough. (On the other hand, maybe the provocative historical comparisons are needed to force people to pay attention. Would be curious to hear what readers think. I guess this is a subset of a bigger set of questions about how useful historical analogies ever are, and for what purposes. For instance, James Forman makes some useful critiques of Michelle Alexander’s Jim Crow frame in a recent NYU Law Review article, and in a shorter piece at the Boston Review.)
• All that said, certainly I think you should read the article, pass it along to friends and family, and discuss it in the comments here or elsewhere. I’m glad these issues are finally on the radar of the intelligentsia.

Friday Roundup

Some reading for the weekend:

• Are men’s prisons more burdensome to their surroundings than women’s? That’s what some California residents are wondering: California’s realignment plan is expected to eliminate the need for one of its three women’s prisons, so the Chowchilla women’s prison may be converted to a men’s facility.
• Those who commit the most serious crimes are least likely to recidivate, and other surprising findings.
• Turns out the 2010 decline in the nationwide prison population was smaller than it first appeared.
• Arjun Sethi proposes “Four ways to relieve overcrowded prisons.”
• Yet another new warden at San Quentin — it’s had seven since 2004.

Some Year-end Reading on Prison Reform, Prisoners’ Rights, and Criminal Justice

Hi all – I will have the blog up and running again after the new year, but in the meantime, I wanted to highlight some valuable reading on prison law and policy issues from the past year. This isn’t a comprehensive best-of list since I’m sure I missed some good reads during my fall hiatus from prison blogging, just a quick round-up of some of the most important prison-related reads for me in 2011. Perhaps they will be useful reads for you as well. And please do add your own suggestions in the comments!

• Reason‘s criminal justice issue: A stellar line-up of articles on prosecutorial misconduct, alternatives to jailing juveniles, the drug war, and more from the libertarian magazine.
• Daedalus‘s mass incarceration issue: OK, this is actually from 2010 but if you are of a more academic bent, this special issue of the journal of the American Academy of Arts and Sciences is effectively a short one-volume anthology of the leading scholarship on America’s mass incarceration crisis.
• Brown v. Plata: In this year’s blockbuster prison law decision, the U.S. Supreme Court affirmed a lower federal court’s order that California must reduce the level of overcrowding in its state prisons from almost 200% of design capacity down to 137.5% of design capacity. The Court affirmed the lower court’s findings that the severe overcrowding in California’s prisons made it impossible to provide basic medical and mental health care to prisoners, thus causing California to systematically violate the Eighth Amendment’s ban on cruel and unusual punishment. If you didn’t get a chance to read the full opinions back in May, I recommend taking a look.
• “‘Realigning’ Criminal Justice in California” by Elliott Currie: Partly in response to Plata, California embarked this year upon a “realignment” of its criminal justice system that shifts responsibility for punishing low-level criminal offenders down to the county level. (Many news outlets have misleadingly described the realignment law as transferring state prisoners to county jails, which isn’t quite what’s happening. Rather, as of October 1, individuals convicted of certain state crimes are now punished at the county level — whether through a county jail term or whatever alternatives to incarceration the county comes up with.) The law is complex, and it’s too soon to start measuring its effects, which in any case will vary dramatically by county. There’s been lots of local reporting on the law’s effects in the California press, but unfortunately much of it has been misleading, fear-mongering, or incomplete. This article by UC-Irvine criminologist Elliott Currie does the best job of any single article I’ve seen of providing a brief but balanced overview of realignment’s pitfalls and possibilities.
• “Creating the Permanent Prisoner,” by Sharon Dolovich: Only a tiny percentage of prisoners are serving LWOP (life-without-parole) terms. But Dolovich, a UCLA law professor, argues that LWOP is simply the most extreme expression of the general motivating aim behind America’s criminal justice policies: to exclude prisoners permanently from society. She argues for abandoning “the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings.”
• “When Felons Were Human,” by Rebecca McLennan: This essay can be usefully read alongside Dolovich’s article. McLennan, a Berkeley history professor, traces the origins of the idea, which Dolovich sees as central to today’s American criminal justice system, that felons forfeit their human rights. McLennan reminds us that “Americans haven’t always perceived prisoners and convicts as exceptional categories of human or even an exceptional category of citizen, undeserving of most or all rights.”
• “Why Mass Incarceration Matters,” by Heather Ann Thompson: This article in the Journal of American History came out in 2010, but I got to it in early 2011, so I’ll include it here. Thompson, a historian, argues that we need to incorporate mass incarceration into our understanding of post-World War II deindustrialization and urban decline. She also calls for revising the received narrative that mass incarceration was an understandable response to the high crime rates of the 1960s. If you can’t track down the journal, Thompson also recorded a podcast that’s worth a listen, which I wrote about here.
• The Toughest Beat, by Josh Page: The first thorough study of the rise and political clout of the California prison guards’ union, valuable not just for understanding the broken politics of criminal justice in California but also a useful entrant into the national discussion over public sector unions more generally.
• “Our ‘Broken System’ of Criminal Justice,” by John Paul Stevens: The former Supreme Court justice reviews the late Harvard law professor William Stuntz’s book, The Collapse of American Criminal Justice (which is also worth a read). Stevens takes issue with some of Stuntz’s specific claims, but praises the book for its clear account of “the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.”
• “Federal Judges uphold Maryland law ending prison-based gerrymandering,” at the Prisoners of the Census blog: In this redistricting year, the Prison Policy Initiative continues its noble quest to eliminate prison-based gerrymandering, which distorts electoral districts around the country. This article will introduce you to some of the issues involved, but the entire  blog is worth a bookmark.
• “Prison Rape and the Government,” by David Kaiser and Lovisa Stannow: One of several entries in Kaiser and Stannow’s pathbreaking series of New York Review of Books articles exposing the scandal of prison rape and explaining how we could better protect those in government detention.

Friday Links, and a Programming Note

So the blog has been a little quiet lately and will likely continue to be quiet through the fall, as unlike previous terms, I have almost no time for extracurricular pursuits this academic quarter. But I’ll try to keep checking in from time to time. Meanwhile lots of stuff is happening:

• Strikes and big changes in California: In California, there’s a renewed hunger strike in the prison system and the implementation of “realignment,” Gov. Jerry Brown’s policy to shift responsibility for low-level criminal offenders down to the county level. Luckily “realignment” is a unique enough term that you can type “california realignment” into Google News and get all the latest coverage.
• Incidentally, here’s a needlessly inflammatory Mother Jones post whose headline announces that realignment has downgraded “participating in a lynching” to a “nonserious” crime. As a commenter there notes, “lynching” is statutorily defined in California “as an aggressive group removing a person from police custody.” It previously carried 2 to 4 years of prison time, so that’s why it now falls into the category of crimes shifted down to the county level. In any event, it is rarely charged by prosecutors.
• Prison-based gerrymandering in New York: The Prison Policy Initiative is litigating a case in New York over the issue of prison-based gerrymandering. Entitled Little v. LATFOR, the case went to hearing earlier this week. You can read more about it here. At issue is a challenge to New York’s new law “requiring that incarcerated persons be counted as residents of their home communities” for Census purposes, rather than counted in the counties where they are imprisoned, which inflates the political clout of constituents who live in those counties. Recently, Prison Policy Initiative’s Leah Sakala explained how this practice relates to the “three-fifths clause” that inflated slaveowners’ political clout.
• Women shackled while giving birth: Colorlines reports on the growing movement to stop prisons from shackling pregnant women while they are giving birth. Yes, this is actually a practice that happens. One might think a movement would not be required to prevent law enforcement officers from doing something that is not only degrading to the mother but also dangerous to the baby, according to the American College of Obstetricians and Gynecology.
• Incarcerating kids doesn’t work: So shows the Annie E. Casey Foundation’s new report, No Place for Kids, which you can download here. The report aggregates a range of data to show: “Youth prisons do not reduce future offending, they waste taxpayer dollars, and they frequently expose youth to dangerous and abusive conditions. The report also shows that many states have substantially reduced their juvenile correctional facility populations in recent years, and it finds that these states have seen no resulting increase in juvenile crime or violence.”

Friday Roundup

Not many links have come across the transom this week, but to take you into the weekend:

• Heather Ann Thompson reflects on Attica, 40 years later.
• Doug Berman asks if prison-friendly cell phones would be a good idea.
• If you’re in or near NYC, visit Think Outside the Cell to register for their free symposium on issues affecting those who are incarcerated and their families, scheduled for September 24 at Riverside Church, and featuring Newark mayor Cory Booker, criminal justice scholars Jeremy Travis and Michelle Alexander, and others.

Post Labor Day Roundup

California spends 11% of its budget on prisons and 6% on higher education. Thirty years ago, those numbers were 3% on prisons and 10% on higher ed. That and more from the Bay Citizen’s interactive tool.

In 36 states, it is legal to bind women in handcuffs and leg shackles while they are giving birth.

County jails remain, by default, the nation’s largest mental health hospitals.

And here’s some law and policy news you may have missed over the long weekend:

• Arizona has passed a law to charge $25 for prison visits to family and friends; the ACLU National Prison Project is suing, calling the fee an “illegal tax.” While described as a background check fee, the prison system admits that the money won’t actually fund background checks but will be used for prison maintenance. The same law will also deduct 1% from deposits to prisoners’ spending accounts; that provision is also being challenged, by the Middle Ground prison reform group.
• Ohio: Lots of changes in the works for the Ohio prison system. Director Gary Mohr is proposing to break the system down into three “tiers”; the lowest tier, “reintegration prisons,” will (in Mohr’s words) “put inmates to work” for eight hours a day. In a nationwide first, Ohio just sold a prison to Corrections Corporation of America for $72 million, which prison Ohio will now start paying CCA to operate. (Originally, the plan was to sell five prisons to CCA.)
• Texas went on a prison-building binge in the 1990s. While the good news is that the Texas prison population has been declining in recent years, now there are many unused prisons throughout the state, which local agencies took on lots of debt to build and are now scrambling to pay for.
• Alabama: Federal lawsuit filed against the Jefferson County (Birmingham) jail, alleging overcrowding, inadequate food and health care, and RLUIPA violations — specifically that Christianity is effectively the only religion that inmates are allowed to practice. The deputy sheriff says they “are not surprised” and are “in a very poor position to defend such a suit.”
• Georgia: The legal tangle between Fulton County, the City of Atlanta, and federal judge Martin Shoob keeps getting more tangled. Basically, Shoob had ordered Fulton County to buy a jail from Atlanta to alleviate overcrowding in the county’s facilities (on pain of criminal contempt proceedings for county officials); Fulton County says it doesn’t have the money; and now Atlanta has more than doubled its original asking price (from $40 million to $85 million), which Fulton County says it *really* doesn’t have.

Friday Roundup

• Watch the above video: Missouri went from 5,000 to 30,000 inmates in the ’90s.
• Another privatization lawsuit: The group ProgressOhio has joined with prison guards to file suit challenging Gov. John Kasich’s plan to privatize several prisons, alleging violations of the Ohio Constitution. The complaint is here.
• Georgia grand jury declines to indict prison guards accused of severely beating several inmates. (Disproving, I suppose, the adage that a prosecutor can get a grand jury to indict a ham sandwich.)
• Will Illinois be the next state to face litigation over prison overcrowding?
• U.S. and Texas partner to begin deporting 11,000 foreign citizens serving time in Texas prisons.
• California considering reforms in response to the Pelican Bay hunger strike. (More from NPR.)
• This interview with Rep. Jerrold Nadler touches on prisoners’ rights.
• Do federal inmates in private prison have the right to sue?
• Colorado prisoners learn green jobs, Indiana inmates fix bikes.

Friday Roundup

Litigation, etc.

• OK, so, here’s the case of the week. Fulton County, Ga. (which includes most of Atlanta plus some of its suburbs), has inmates sleeping on the floor because its jail is so overcrowded. In settling a 2004 federal lawsuit over these conditions, the county agreed to fix this. Specifically, the county said it would purchase a jail from the City of Atlanta to use. Only now, the county says it doesn’t have the money to go through with the purchase. Federal judge Marvin Shoob’s response:

“We’re running a jail like a Third World country,” Shoob said. “I don’t care where they get the money.”

Shoob told Ware to inform the Fulton county commissioners to move ahead with the sale. If there is resistance, Shoob said, “I’ll let them know I’ll send them to the federal penitentiary. I really mean it.”

• Feds reach agreement with Erie County (that’s Buffalo), N.Y., to implement sweeping changes to the county jail. This resolves a lawsuit brought by the DOJ Civil Rights Division, which the county fought tooth and nail. In fact, the County Executive is still calling the lawsuit “frivolous” which is odd considering the county settled.
• Nashville woman wins lawsuit against sheriff’s department that kept her shackled during childbirth. The jury has awarded $200,000 in damages, although Nashville’s lawyers have vowed to appeal to the Sixth Circuit. The woman was in custody for minor traffic charges that were later dropped. The Crime Report recently offered a roundup of shackling practices nationwide; Colorlines covered the case back in May.
• Speaking of shackling, the ACLU has filed suit over ICE shackling immigration detainees in court.
• Ads informing ex-prisoners of voting rights were unconstitutionally rejected by the Pittsburgh Port Authority.

California

• The prison hunger strike at Pelican Bay has triggered some limited reforms. But on a media tour of the supermax, a CDCR spokesman continued to say that he doesn’t think the conditions are torturous.
• Should inmates be allowed to use Facebook? California says no, Doug Berman says maybe.
• Could California close a women’s prison in the near future?
• A ballot initiative to reform California’s three strikes law is in the works.

Around the U.S. and World

• Less than a month old, Arkansas sentencing reforms are already triggering backlash… mainly from legislators who were outvoted the first time around. Meanwhile, Arkansas judges are interested in Hawaii’s HOPE model for probation.
• After an inmate on suicide watch commits suicide, calls for federal oversight of Orleans Parish Prison.
• Illinois prison is prone to flooding, mold, mildew, and spider bites.
• Maryland prisons create niche market for clear-case electronics.
• New York prisoner does not have the right to daily matzoh.
• Prison chaplains are a common casualty of state budget cuts.
• Some prisoners can vote in Tennessee.
• At over 5,000, Texas has the most prisoners in ad-seg of any state.
• Recidivism rates are lower for ex-offenders given the right to vote.
• Conservative states are closing prisons.
• Egypt to install pay phones in prison.
• Harsh conditions in Israeli prisons.

Friday Roundup

Sorry all, the week got away from me before I had the chance to post, but here is some prison-related reading to take you through the weekend.

News you can use: 

• The Florida Independent tracked down the complaint in the prison guards’ lawsuit over privatization.
• California Corrections Crisis reviews Josh Page’s book on the California prison guards’ union.
• Sharon Dolovich investigates gay and transgender segregation in L.A. County Jail.

Good news: 

• For the first time in its history, Texas has closed a prison.
• Dismantling prison-based gerrymandering in New York State.

Weird news: 

• Liliana Segura visits the famed Angola Prison Rodeo — a must-read.

Sketchy news: 

• MRSA erupts (again) at a Pennsylvania prison.
• ALEC’s ties to promoting private prison labor.

Sad news:

• Here’s a follow-up to Monday’s news about the 18-year-old who died while being detained on a marijuana offense in a Florida juvenile jail.