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.

 

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“Room for Debate”: Would Ending the War on Drugs Resolve Racial Imbalance in the Prison System?

The New York Times “Room for Debate” feature this week addresses the racial imbalance in incarceration rates, providing a range of opinions on the question:

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?

New Study: Prosecutors, Not Police, Have Driven Prison Population Growth

The United States prison population has exploded over the past 40 years. But why? Have police been making more arrests? Have prosecutors been charging more people with crimes? Have judges been issuing longer sentences? Have parole boards become stricter? (All of the above?) Since many accounts of mass incarceration collapse “the criminal justice system” into a single monolith, it can be hard to know exactly what part of the system has driven the growth in the prison population.

A new empirical study by Fordham law professor John Pfaff aims to provide a more granular explanation of the causes of mass incarceration. Pfaff concludes that only one other relevant number has changed as dramatically as the prison population has: the number of felony case filings per arrest. In other words, police haven’t been arresting more people:

[B]etween 1982 and 1995, arrests rose by 26% (from 3,261,613 to 4,118,039) while mean [prison] admissions rose by 149% (from 212,415 to 530,642); between 1995 and 2007, arrests fell by 28.6% while admissions rose by another 31.9%. It is thus clear that arrests are not driving the growth in incarceration—and by extension neither are trends in crime levels, since their effect is wholly mediated by these arrest rates. 

Rather, prosecutors have become more likely to charge those arrested with crimes: 

The Federal Judge’s Case for Criminal Justice Reform

Here’s Fourth Circuit judge Andre Davis, concurring reluctantly with a federal LWOP sentence for crack dealing (h/t Doug Berman):

The record shows that [defendant Tony] Gregg was a classic “utility player” in America’s forty-year “war on drugs”: user, seller, “snitch.” A tenth-grade drop-out (after repeating the second grade and the seventh grade) with four half-siblings, he began to use illegal narcotics in his early teens. For a time, he lived in an abusive family environment; later, he moved between his mother, grandmother, and father, sometimes in Virginia, sometimes in Ohio. As a young man, he attempted suicide more than once (although he described the episodes as mere attempts to “get high”). Throughout his 20s and early 30s, he was in and out of jails and prisons on a regular basis, sometimes for assaultive behavior. …

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” …

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison. He is not alone: the United States currently has the highest rate of incarceration in the world. …

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure. 

The opinion can be downloaded here (PDF) and is well worth reading in full.

Web (& Not-Just-Web!) Resources: ACLU Mass Incarceration Initiative

Readers of this blog are likely familiar with the ACLU’s National Prison Project, which works to protect the rights of prisoners as well as pretrial and immigration detainees nationwide. Now, the ACLU has embarked upon a related initiative, the Safe Communities, Fair Sentences project, which will advocate against mass incarceration. Bookmark this site for a weekly dose of “overincarceration” news.

At the ACSblog, ACLU attorney Inimai Chettler asks “Just What Is So Wrong with the War on Drugs?”:

So what’s the verdict 40 years later? Have we won the war on drugs? Quite simply, no. From a public safety perspective, the war has been completely ineffective at stemming the supply or use of drugs in this country. From a cost perspective, it’s been horrific – with a whopping $1 trillion price tag thus far and an unimaginably higher toll in lives and families lost to prison. In terms of fairness, it has been a total bust as well. The effect on communities of color has been astonishingly tragic: there are more African-Americans under the control of prison and corrections departments today than were ever enslaved by this country. Even the current head of the Office of National Drug Control Policy, Gil Kerlikowske, and more recently the Global Commission on Drug Policy, have announced that the drug war has been an abject disaster.

According to the federal government, drugs are increasingly widely available and the rates of drug use are actually up by 10 percent since the start of the war on drugs. Drug supply and use have increased despite the2.3 million people languishing in prisons – about 25 percent of whom are locked up for drug violations. If we look at just federal prisons, things are even worse, with nearly half of those in prison locked up for drug crimes.

When we incarcerate drug offenders, they stay locked up for insanely lengthy periods of time – and often forever. We increasingly sentence them to life in prison under three-strikes-and-you’re-outlaws for petty drug crimes. And disappointingly, our Supreme Court has upheld the constitutionality of laws imposing disproportionate mandatory sentences of life without parole for simple possession of drugs.

“In Defense of Flogging”

Wow. Color me bleeding-heart, but I think this piece by Peter Moskos kills it:

My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. We are in denial about the brutality of the uniquely American invention of mass incarceration. In 1970, before the war on drugs and a plethora of get-tough laws increased sentence lengths and the number of nonviolent offenders in prison, 338,000 Americans were incarcerated. There was even hope that prisons would simply fade into the dustbin of history. That didn’t happen.

From 1970 to 1990, crime rose while we locked up a million more people. Since then we’ve locked up another million and crime has gone down. In truth there is very little correlation between incarceration and the crime rate. Is there something so special about that second million behind bars? Were they the only ones who were “real criminals”? Did we simply get it wrong with the first 1.3 million we locked up? If so, should we let them out?

America now has more prisoners, 2.3 million, than any other country in the world. Ever. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Stalin, at the height of the Soviet gulag, had fewer prisoners than America does now (although admittedly the chances of living through American incarceration are quite a bit higher). We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.

If 2.3-million prisoners doesn’t sound like a lot, let me put this number in perspective. It’s more than the total number of American military personnel—Army, Navy, Air Force, Marines, Coast Guard, Reserves, and National Guard. Even the army of correctional officers needed to guard 2.3-million prisoners outnumbers the U.S. Marines. If we condensed our nationwide penal system into a single city, it would be the fourth-largest city in America, with the population of Baltimore, Boston, and San Francisco combined.

Read the piece in full, and send it to your friends and family.

A Life Sentence for 1.2 Grams of Crack?

In his book Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State, Joe Domanick tells the story of Tommy Lee Fryman:

In 1998, Fryman was arrested in San Jose for being under the influence of cocaine. Tommy Lee was strip-searched when the cops found 1.2 grams of crack cocaine “hidden between his buttocks.” He pleaded guilty to possession of cocaine base, and because of nine prior felony convictions “alleged as strikes,” was given a three strikes sentence of twenty-five-to-life.

Here’s the kicker: If Tommy Lee Fryman had been arrested just a few years later, he would not have served a day in prison. In November 2000 California voters passed Prop. 36, which mandates treatment, not hard time, for simple-possession drug charges. At that time, California was incarcerating 36,000 men and women a year for simple possession — the highest number in the nation both in absolute and per capita terms. Of that number, about 580 people, like Fryman, had been sentenced to 25-to-life sentences for simple drug possession under the 1994 Three Strikes Law. (The close proximity in time of Three Strikes and Prop. 36 is, itself, a fairly good metric of the incoherence of California criminal justice policy.)

Fryman’s federal habeas case was argued at the Ninth Circuit this week by two students from Stanford Law School’s Three Strikes Project. Fryman’s argument is, first, that the sentence is cruel and unusual under the Eighth Amendment, and second, that the sentence violates the Equal Protection Clause, given that voters approved Prop. 36 while Fryman’s state appeals were still pending (and thus, i.e., that Fryman is being treated differently before the law than similarly situated offenders). You can listen to the oral argument at this link (the case name is Fryman v. Duncan).

Although I don’t normally cover sentencing law, this case and others like it help to explain today’s prison conditions. There is a generation or more of Californians — those who were of crime-committing-age between 1980 and 2000 — who racked up criminal records and prison stints on the basis of draconian drug sentencing practices that California voters have since rejected. A lot of those men and women are still in the system or still being hurt by the system, whether because prison ruined their life, or because they got into further trouble once labeled a criminal, or because they got out of prison and finding few resources to help them went back to using drugs, or whatever reason. Or because like Fryman, they are literally still in prison because they were caught up both in the drug war and the Three Strikes Law. And the same story could be told about New York and the Rockefeller drug laws, and many other states, and certainly about the federal system. Sentencing reform for the future is an important first step, but the roots of mass incarceration can’t be pulled out so neatly — ultimately some form of retrospective justice will also be needed, I think. Imagine what additional challenges your life might have included if you’d been sent to prison 10 or 20 years ago, and now consider that for millions of Americans, that happened.

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. 

L.A. Arts Group Dramatizes California Prison Crowding Litigation

The judges who wrote the 184-page court order in Coleman/Plata may have hoped they were writing history, but it turns out they were contributing to art, too! The Los Angeles Poverty Department, an arts and activism collective made up largely of homeless people, recently completed an innovative project combining public education, performance art, film, and theatre:

Project events started with a panel discussion about the effects of California’s parole reform on parolees. As we build the performance, State of Incarceration, we performed it in Skid Row, in parolee re-entry programs in the San Fernando Valley and LA and in 5 performance events at the BOX gallery that took place within a wall-to-wall prison bunk-bed installation. In the BOX’s basement we showed images charting the expansion of the prison population and new prison construction in California over the past 3 decades and the 21 year and counting history of the lawsuit challenging the quality of the health services in the state’s over-crowded prisons.

We invited our audience to read one page of the 184-page lawsuit. We’ll continue doing this until all pages are filmed. The resulting 5+ hour film will be part of the project.

The finished performance piece opened in late January at Highways Performance Space in Santa Monica. Unfortunately I didn’t find out about it in time to alert readers — it closed Feb. 5 — but here’s one reviewer’s summary of the experience:

In some shows, one may feel like one is in prison; in this one, that intent is deliberately visceral: Metal bunk beds line the walls and center of the theater and audience members are crammed into the room, often sharing bunk beds with the actors playing the inmates. The directors interspersed disturbing silences between a series of monologues and starkly delivered poems that illustrate the despair and hopelessness of prison life. In one such silence, convicts recline on their beds, and the guards patrol every inch of the room. During this sequence, the charged quiet belies the undercurrents of seething rage, and the piece approaches the claustrophobia, sorrow, and anger of being in prison.

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.