Must-read: “Louisiana Incarcerated: How we built the world’s prison capital”

The New Orleans Times-Picayune has an excellent series on how Louisiana became the world’s leading jailer. The eight-part series begins with these sobering stats:

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.

 

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.

Should Prison Sentences Take into Account the “Unintentional Harms” Associated with Prison Life?

Theories of punishment typically focus on the “letter” of the punishment — thus, a five-year prison sentence is a five-year prison sentence. But subjectively, five years in a minimum-security prison with weekend furloughs would be a very different experience than five years held in solitary confinement in an isolated supermax. Moreover, even within the same prison, each inmate will experience a five-year sentence differently — even if state law isn’t intentionally designed to treat inmates differently. Should sentencing decisions take into account factors beyond just the “intended” punishment? What about foreseeable “side effects” of punishment, such as reduced ability to see one’s family, or a particular inmate’s lack of access to needed drug treatment?

Readers may be interested in this new paper from Professor Adam Kolber at Brooklyn Law School, which considers these types of questions. Here’s an excerpt from the introduction:

Even though conditions vary substantially among prisons, we generally ignore these variations when assessing punishment severity. We fetishistically focus on the length of prison terms, even though sentence severity cannot just be a function of time. […]

Moreover, even identical prison facilities have very different effects on prisoners. One inmate may become extremely distressed, while another thrives in the very same facility. Though we do not necessarily intend to cause such distress, bad experiences are clearly foreseen side effects of incarceration that vary considerably from inmate to inmate. Nevertheless, we generally treat inmates as receiving punishments of equal severity no matter how we expect them to experience prison life. 

Professor Kolber argues that “in order to impose just punishment, the state must measure the unintentional harms associated with punishment that it inflicts or expects to inflict and take those measurements into account at sentencing.” You can download the paper here, and read Professor Doug Berman’s take on it over at Sentencing Law & Policy.

Some Holiday Reading on Mass Incarceration and the War on Drugs

Here are two magazine features to keep you occupied in airports and train stations through the new year:

• The American Prospect has published online this special report on mass incarceration, which will also appear in its January/February 2011 print issue. The report features contributions from criminal justice policy scholars Mark Kleiman and Michelle Alexander, plus reporting on a wide range of policy issues (indigent defense, prisoner reentry, education funding, etc.) and state and local experiments with alternatives to incarceration.

• Then, The Nation has published this forum on the War on Drugs, featuring a great lineup including Bruce Western, Marc Mauer of the Sentencing Project, and Ethan Nadelmann of the Drug Policy Alliance.

“Prison Without Walls” and the Special Case of California

The Atlantic has an interesting article called “Prison Without Walls,”* on supervised release programs like parole and probation, and the rise of GPS tracking and other ways of keeping track of “prisoners on the outside” — what Graeme Wood calls, in the article, “Panopticon justice.” As a California-based observer of prison law and policy, I only have one quibble with the article. Wood describes his subject as follows:

An underappreciated fact of our penitentiary system is that of all Americans “serving time” at any given moment, only a third are actually behind bars. The rest—some 5 million of them—are circulating among the free on conditional supervised release either as parolees, who are freed from prison before their sentences conclude, or as probationers, who walk free in lieu of jail time. These prisoners-on-the-outside have in fact outnumbered the incarcerated for decades.

This traditional definition of parolees — men and women “freed from prison before their sentences conclude” — is not accurate as applied to California, the nation’s largest prison system. While California does have a small population of prisoners sentenced to variable-to-life terms and thus theoretically eligible for parole in the sense of early release, California also uses its parole system to supervise the 95% of its prisoners who serve determinate sentences. From 1979 through this past January, every determinately sentenced offender in California faced a mandatory post-release parole supervision period of up to 3 years; as of January 2010, about 85% do, and even those not on full parole can still be kept on “banked parole,” meaning they can be searched without a warrant at any time. (I summarized California parole, and linked to some helpful overviews of the system, in a post back in January. Another good overview was recently published by the Bay Citizen. In light of the widespread confusion, I’ve also asked a couple of times if California shouldn’t change the name of parole supervision altogether.)

The Former Prison Official’s Case for Criminal Justice Reform

Via Doug Berman, I noticed this Trenton Times op-ed by David Shebses, who worked for many years as supervisor for education and then as executive assistant to the warden at New Jersey’s East Jersey State Prison. Shebses provides a list of recommendations for curbing corrections costs and restoring proportionality to the criminal justice system. Here are the first few:

1) Eliminate mandatory minimum sentences for all crimes. The Legislature should provide general ranges of time from which judges could impose more proportionate sentences that match up with the crime and its circumstances. Proportionality in sentencing serves the ends of justice.

2) Stop incarcerating most people who are convicted of using most drugs. The Legislature should figure out which illegal substances should be decriminalized, and to what extent. I would still prosecute drug dealers when their motivation is clearly profiting from the drug trade. But the guy who is mainly a user, or who deals drugs incidental to his own use, should not, generally, be incarcerated. Treated, yes; not imprisoned.

3) Abolish the parole system. Parole is based on a false premise, namely, that it is possible to predict human behavior. It is not possible. …

House Approves a Blue-Ribbon Commission on Criminal Justice

Today the House of Representatives approved legislation to create a national commission to offer reform recommendations on incarceration rates, sentencing policy, crime prevention, substance abuse, reentry, and more. The bill now depends the Senate where it has been introduced by Jim Webb of Virginia. (H/t: the Sentencing Project)

However, as Doug Berman points out, the major problem with criminal justice policy “is not a lack of good ideas, but a lack of leaders willing to help ensure good ideas become law.” This is certainly true not only on the federal level, but also on the state level (California has had one blue-ribbon commission after another making the exact same recommendations for 20 years, and little has changed). Maybe we need an expert commission to study why no one listens to expert commissions.

Upcoming Event: NASC 2010 on the Alabama Gulf Coast

The National Association of Sentencing Commissions (NASC) will hold its 2010 conference this August 8-10 in Point Clear, Alabama, which is on the Mobile Bay. Registration info available here. (h/t: Doug Berman)

I had the opportunity to attend some sessions of the 2008 NASC conference in San Francisco and can attest that it’s an informative, thought-provoking event that attracts a wide range of criminal justice professionals from around the country. And based on many childhood vacations, I can also attest that the Alabama Gulf Coast region is a very nice place to visit! (Although it has tragically been hit hard by the BP oil spill.) The conference agenda is available here; the theme is “Sound Sentencing Policy: Balancing Justice and Dollars”:

This year’s conference will offer plenaries, workshops and roundtable discussions on issues relating to sentencing practices and the hurdles sentencing commissions and criminal justice officials must overcome during these times of shrinking budgets and scarce resources, as well as innovative ways that states have faced these challenges. Welcoming the conference attendees will be Alabama’s Chief Justice Sue Bell Cobb, Federal Circuit Judge, Bill Pryor, former Attorney General of Alabama and leader in establishing Alabama’s Sentencing Commission, and Commission Chair, Retired Circuit Judge Joe Colquitt, Beasley Professor of Law, University of Alabama School of Law.

South Carolina Debates Sentencing Reforms

The Palmetto State has seen its prison population triple since 1983, with much of that increase coming from nonviolent offenders and — similar to, although not as extreme as, California — technical parole violators. According to the Sentencing Project’s interactive map (which, by the way, is a great source of data), South Carolina currently incarcerates over 36,000 men and women, with another 40,000+ on probation or parole, all at a cost of $629 million per year. Though it’s worth noting that unlike some other states, the incarceration rate in South Carolina is not hugely disparate between blacks and whites (the ratio is 1.1:1 — compare, for instance, Connecticut, which has a 6.6:1 ratio. As you can see, the “Compare by States” feature of the Sentencing Project map is really handy). The combination of budget woes and prison overcrowding came to a head in South Carolina earlier this year, when the state had to decide whether to release 3,000 prisoners or run a $29 million deficit.

With the goals of hemming in prison spending and alleviating overcrowding, the South Carolina legislature is currently considering a proposal to provide alternate sanctions for nonviolent offenders. Here’s a description of the bill, from a Greenville News editorial in favor of the legislation:

The bill further defines violent and nonviolent crimes, calls for streamlining sentencing to ensure there is room in state prisons for the most violent offenders, and reduces sentences for some nonviolent crimes. It also establishes options for community-based programs such as the drug courts that have been effective in Greenville County.

The changes were proposed by the legislatively appointed Sentencing Reform Commission and were published earlier this year. The need for sentencing reform is evident. … Nearly half of the system’s inmates are being held for nonviolent offenses. …

According to the Sentencing Reform Commission, the proposed changes would save taxpayers $92 million in Corrections’ operating costs over five years. They also would save Corrections the estimated $317 million it would cost to add the prison space that would be needed absent the changes.

It’s worth noting, though, that the bill would also lengthen some sentences: the Orangeburg Times and Democrat reports, for instance, that it would increase the maximum penalty for attempted murder to 30 years (from a current maximum of 10 years).

California Sentencing Law: What a Long, Strange Trip It’s Been

I’m currently doing some research on California’s 1977 switch to determinate sentencing. As background, from 1917 forward California (like many states) had what’s known as “indeterminate sentencing,” meaning that convicted offenders would get sentenced to a very broad term — say, 1 year to life — and then they would go periodically before the parole board, who would decide if they were sufficiently rehabilitated to be released back into the community. Among other consequences of this policy, the parole board — an unelected and relatively anonymous government body — had all the practical power over sentencing in California — legislators, judges, prosecutors, and defense attorneys had virtually no say in how much time any given defendant would actually wind up serving. Also, the sentences actually served for the same crime varied widely from one offender to the next: For instance, out of inmates doing time for second-degree murder in the early 1970s, the actual time served ranged from 19 months to 26 years.

This all changed after 1977, when California passed legislation involving a broad set of criminal justice reforms, including a switch to “determinate sentencing.” Now, post-1977 California sentencing law gives new meaning to the word byzantine, so I won’t go into all the details here, but the core idea behind the changes was twofold: (1) the purpose of imprisonment is punishment, not rehabilitation, and (2) offenders who commit similar crimes should serve similar sentences. So, under California’s determinate sentencing scheme, the legislature prescribes a narrow sentencing range for each offense (e.g., 2, 3, or 4 years for crime [x], plus various “enhancements” — additional terms of years that can be tacked on — for things like using a firearm or being a repeat offender). The sentence imposed by the judge, minus good-time credits accumulated while in prison, is the sentence that the offender actually does; the parole board can’t let him out early. I’ve just made the whole process sound a few orders of magnitude more straightforward than it actually is, once you factor in complications like concurrent vs. consecutive sentencing, multiple offenses, subsequent reforms like the Three Strikes Law, etc., etc., etc., which is why many California judges, prosecutors, defense attorneys, etc. rely on a computer program to figure out any particular defendant’s sentencing exposure. (Oh, to be one of those states that just has a single-page chart.)