New Book: When American Religion Meets American Mass Incarceration

Insofar as America is (descriptively) exceptional,* two key differences setting America apart from its peer nations are mass incarceration and popular religiosity. Assuming the U.S. is most usefully compared with Canada, Australia, and Western Europe (I acknowledge not all will share this assumption), none of these peer nations match the U.S. imprisonment rate and few come close to American levels of church membership, church-going, or public professions of faith. Perhaps not surprisingly, then, many American prisons offer a wide array of faith-based programming (even, or especially, prisons where secular education and rehabilitation programming is meager: for instance, in Louisiana’s Angola State Prison, you can earn a BA from a Baptist theological seminary, but no non-Christian college courses are offered). An evangelical group, Chuck Colson’s Prison Fellowship Ministries, is among the most prominent national organizations sending volunteers into prisons and advocating for criminal justice reform.

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:

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The Fiscal Crisis and Criminal Justice Reform

Does fiscal crisis promote criminal justice reform? From reading newspapers and magazines, one would certainly think so. State efforts to cut costs by downsizing prisons have been one of the biggest criminal justice stories in recent years — with articles like this one (on California) and this one (on Oregon and… (the list could go on) now a recurring feature in both national and local newspapers. UC-Hastings law professor Hadar Aviram has coined a term for this convergence of fiscal woes with prison reform: “humonetarianism.” And one of the more intriguing political developments of the Obama era — the sudden reversal of many right-wing politicians from their Bush/Clinton/Bush era “tough on crime” stance — can be explained in part by concerns about the runaway costs to taxpayers of mass incarceration. Yet as Malcolm C. Young notes at The Crime Report, state budget woes can also be “double-edged swords” if they lead states to slash social programs that can help keep people out of prison.

In a (relatively) new paper, UW law professor Mary D. Fan provides some timely scholarly analysis of this seeming trend of “budget-cut criminal justice,” and offers suggestions for how states might move beyond expedient cost-cutting to lasting penal reform. In turn, here’s UC-Davis law professor Elizabeth Joh, writing at the legal blog Jotwell, discussing Fan’s findings:

Some of [the recent state-level prison reform] measures are decidedly modest; about half of the states have introduced “back-end” sentence reductions in their early release and parole programs so that individual prisoners receive small adjustments in their sentences in the interest of collective fiscal savings. Wisconsin has introduced “Taco Tuesdays” to save $2 million dollars a year by shaving off ten cents per inmate meal. Other measures, though, are decidedly more ambitious. Fan draws upon many examples. In 2008, Mississippi amended a law requiring prisoners to serve 85 percent of their sentences, so that parole boards could decide to release prisoners after serving 25 percent of their sentences. In 2009, New York amended its law to give counties the discretion to establish “local conditional release committees” to review applicants for early release. In 2010, the Colorado House of Representatives passed a bill with bipartisan support that lowers the penalties for several drug possession and use crimes. …

Fan suggests public officials consciously embrace a fiscally responsible, evidence-based approach to penal policies that focuses on alternatives to automatically increasing sentences and warehousing prisoners. Unlike the rehabilitative ideal of the first half of the twentieth century, this rehabilitation pragmatism is less interested in the moral transformation of the prisoner and more concerned with cost-effective measures that nevertheless assure the public of its safety. Fan draws our attention to a moment in our history that may well be a turning point for prison policies that desperately need political will and legislative attention.

Realignment in California: The Basics, Plus How Counties Are Preparing

On October 1, California will start diverting low-level felony offenders and parole violators to county jail, rather than state prison, when a new law, known as “realignment,” goes into effect. The law was proposed by Gov. Jerry Brown as a way to bring the California prison system into compliance with the Supreme Court’s order to alleviate overcrowding, and was enacted by the Legislature in March as AB 109. I thought I’d run through a few basics of how the law will work and round up some recent news coverage from around the state. If you’re looking for a more comprehensive resource, the ACLU of Northern California has produced a helpful guide (PDF) to the law and how counties can plan for the changes.

The Mechanics

• How will AB 109 change California sentencing practices? As of October 1, the law transfers responsibility for punishing non-serious, non-violent, non-sex felony offenses to the county level, where misdemeanors are already handled. So rather than being sent to state prison, these low-level offenders will now be punished with a term in county jail or whatever alternative sanction the county comes up with. (For those familiar with the California Penal Code, generally we’re talking about felonies punishable by the “16 months/2 years/3 years” triad.) 

Are “Certificates of Rehabilitation” the Solution to Prisoner Reentry?

Should more states join the seven that offer ex-prisoners the opportunity to earn “certificates of rehabilitation”? In a new paper, NYU law professor Joy Radice draws lessons from the 50-year history of these certificates in New York, the first state to introduce a program of this type. Here’s the abstract:

After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these postconviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the oldest and most robust. Yet no article has examined New York’s experience with Certificates of Rehabilitation.

This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry. I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance.

Summer Reading: YES! Magazine and Reason Magazine

At my local Borders yesterday I noticed not just one but two magazines on the newsstand featuring criminal justice topics this month:

• YES! Magazine‘s Beyond Prisons issue features articles on Washington State’s prison university program, Maori responses to youth crime, Hawaii’s women’s prison, and more. For activists, organizers, etc.: YES! licenses all its content through Creative Commons, so you can reprint the articles in your own publications without worrying about copyright. Just make sure you follow the magazine’s reprint guidelines here.
• Reason Magazine‘s Criminal Injustice issue includes pieces on the California prison guards’ union, the relationship between incarceration and the crime rate, sexual assault behind bars, the immigration detention system, and more.

I’m glad to see publications from across the political spectrum taking up the cause of criminal justice reform.

Drug Courts: Reasons to Be Skeptical

Reason #1:

• This American Life reports on a Georgia drug court gone really awry. Like, batshit-crazy awry.

OK, you say, but that’s Georgia. I, a native Georgian, say, OK, you may have a point. What about drug courts that are running as intended? Well… it turns out there’s still reason for concern. To wit:

Reasons #2-4:

• Drug Policy Alliance issues a new report concluding that drug courts do not reduce incarceration, do not save money, and do not improve public safety. Says DPA’s Daniel Abrahamson: “Drug courts have actually helped to increase, not decrease, the criminal justice entanglement of people who struggle with drugs.”
• The Justice Policy Institute issues a similar report (PDF) concluding that drug courts are neither the most effective nor the most cost-effective treatment options, and serve merely to widen the net of the criminal justice system. (The report also discusses the proliferation of other specialty courts modeled upon drug courts, like veterans courts and mental health courts.) (h/t: Doug Berman)
• And that was just in the past week! See also this 2009 statement from the National Association of Criminal Defense Lawyers, on how drug courts endanger defendants’ constitutional rights. 

West Virginia’s Prison Overcrowding Crisis

An informative piece from West Virginia Public Broadcasting notes that the state’s fast-growing prison system now holds 6,700 inmates in facilities built to hold 5,100, and still the new commitments keep arriving faster than the system can make room for them. The state is experimenting with accelerated parole, work-release, and drug treatment programs to try to alleviate the overcrowding enough to avoid needing to build a new prison. According to the piece, 75% of West Virginia inmates are in for a nonviolent property or drug offense.

In absolute terms, of course, these numbers aren’t huge: what’s 6,700 inmates compared to the 100,000+ in California, Texas, and Florida? (West Virginia has approximately the population of Santa Clara County, California.) And West Virginia’s per capita incarceration rate (346 per 100K, or 570 if jails are also included) is also not particularly high by U.S. standards — though of course, that still makes it relatively high by world standards. Nevertheless, if it’s true that 75% of inmates are doing prison time for nonviolent property and drug offenses, I’d guess the system is ripe with low-hanging fruit for reform-minded legislators and policymakers.

John McWhorter on Prisoner Reentry and Unemployment

John McWhorter has an interesting piece over at The Root on prisoner reentry and black unemployment. McWhorter spotlights a few promising reentry/employment programs in Newark, N.J. McWhorter suggests that finding an employer willing to hire folks with criminal records is actually not the biggest hurdle for ex-prisoners — rather, it’s all the steps you have to go through before you can even think about going on an interview:

The immediate task at hand for an ex-offender is becoming able to work. Ex-cons often don’t have a Social Security number — and forget about a birth certificate. … Nine in 10 clients need detoxification or rehabilitation.

(BTW: Unlike Obama, Newark mayor Cory Booker has been known to voluntarily bring up the problem of mass incarceration in speeches where he could have gotten away with uplifting pablum. It’s probably no accident that Newark has some promising programs.)

Georgia’s Governor: Breaking New Ground in Law-and-Order Demagoguery

So, it used to be that politicians would pair “build more!” talk on prisons with “be very afraid” talk about “criminals.” That combination could be called the “lock ’em up” mode of “tough-on-crime” politics. The new governor of my home state has apparently hit on a new formula. From his inaugural speech:

Presently, one out of every 13 Georgia residents is under some form of correctional control. It cost about $3 million per day to operate our Department of Corrections. And yet, every day criminals continue to inflict violence on our citizens and an alarming number of perpetrators are juveniles.

College students should be concerned about their grades not whether they are going to be mugged on their way home from class. Visitors to our cities should be treated as welcomed guests and protected. Families should not live in fear of gang violence and drive-by shootings. But most of all, our dedicated law enforcement officers must not be targets for criminals. Anyone who harms one of them harms us all, for they embody the Constitutional mandate that government provide us with protection and security.

Breaking the culture of crime and violence is not a task for law enforcement officials alone. Parents must assume more responsibility for their children. Communities must marshal their collective wills; civic and religious organizations must use their influence to set the tone for expected behavior.

For violent and repeat offenders, we will make you pay for your crimes. For other offenders who want to change their lives, we will provide the opportunity to do so with Day Reporting Centers, Drug, DUI and Mental Health Courts and expanded probation and treatment options. As a State, we cannot afford to have so many of our citizens waste their lives because of addictions. It is draining our State Treasury and depleting our workforce.

So, I’m guess I’m glad Deal is using his mini-bully pulpit to point out that the War on Crime costs a lot of money and doesn’t necessarily deliver commensurate benefits. And in a backhanded way, his mini-sermon about “the culture of crime and violence” at least acknowledges that just passing laws and arresting people doesn’t magically make everyone stop doing things you don’t want them to do.

That said, this is not, by any measure, a model of how elected officials should introduce mass incarceration onto the policy agenda. Deal is still trafficking in the same cartoon of The Criminal that we’ve been hearing about from politicians for basically as long as I’ve been alive, he’s just refining it slightly to exclude “offenders who want to change their lives.”

“What’s Ahead for California’s Dysfunctional Prisons?”

The Crime Report has an interview with Matthew Cate, Secretary of the California Department of Corrections & Rehabilitation — worth reading in full for California wonks. Here’s an excerpt:

TCR: What are your two or three major accomplishments?

Cate: Reducing prison overcrowding while seeing crime rates in California continue to decline, is accomplishment number one. Number two is parole reform, where as I’ve mentioned, we’ve developed and used a risk assessment tool to identify and focus our resources on our most dangerous inmates, rather than just cycling our low risk inmates through our prisons over and over again for technical violations. This concept of basing our decisions on the science of who’s risky and who’s not is a major step forward in California.

TCR: What has been your biggest frustration?

Cate: The fact that corrections reform takes so long. It took two-and-a-half years to put in place the basic rudiments of parole reform. It was a highly politicized issue, and there were civil service and bureaucratic rules that had to be dealt with. The red tape is so unbelievable in California that it takes a long time to make anything happen even when everyone agrees it should be done.