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.

Advertisement

Seventh Circuit: Wisconsin’s “Inmate Sex Change Prevention Act” Violates the Eighth Amendment

Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. — Fields v. Smith, 7th Cir., Aug. 5, 2011

The Seventh Circuit recently struck down a 2005 Wisconsin law, the “Inmate Sex Change Prevention Act,” that barred prison doctors from prescribing hormone treatment or sex reassignment surgery for transgender prisoners. The Seventh Circuit panel of Gottschall (a district judge sitting by designation), Rovner, and Wood held that the statute violates the Eighth Amendment ban on cruel and unusual punishment, affirming a ruling by Wisconsin federal district judge Charles Clevert. (While Clevert’s ruling also found a Fourteenth Amendment Equal Protection Clause violation, the Seventh Circuit did not reach that issue, striking the law solely on Eighth Amendment grounds.)

Writing for the panel, Judge Gottschall (PDF here) summarizes the expert testimony offered at trial about the “feelings of dysphoria” caused by Gender Identity Disorder (GID): 

Wisconsin’s Newest Senator on Why His Companies Employ Prisoners

Funny that the Tea Party movement, in the name of restraining government power and/or protesting TARP, unseated the rare senator who occasionally voted to restrain government power and, you know, opposed TARP. OK, you say, but this isn’t a political blog, and anyway the election was actually more about the health care bill. OK, I say, fine. In any event, here’s the prison connection: it turns out that Wisconsin’s newest senator will head to Washington with some firsthand knowledge of prison labor:

Public records show that Pacur Inc. and Dynamic Drinkware LLC, two companies run by [Ron] Johnson, employ up to nine inmates at a time through a state Corrections Department jobs program.

Johnson’s companies offer private health insurance to the regular employees at the Oshkosh factories. But Melissa Roberts, an executive assistant with the Corrections Department, said the companies don’t have to cover the inmate workers. “The benefit is that they don’t have to pay health benefits,” she said.

The Johnson campaign said the candidate was not available to comment Friday because he was preparing for his debate later that evening with Feingold. But campaign spokeswoman Sara Sendek said his companies hire inmates as a public service.

Saving money “was not a factor by any means,” she said. “The factor was, this is a way to help put these people on the path back to recovery so they could contribute and work their way back into society.”

Did Wisconsin Punish a Prison Whistleblower in Hopes of Avoiding Civil Liability?

It sure looks that way — from the Journal-Sentinel:

An internal Department of Corrections investigation found evidence that Warden Michael A. Dittmann used slurs against homosexuals, hurled fruit at subordinates who disagreed with him and may have even approved overtime pay for some staffers so others could go to cookouts.

But instead of demoting Dittmann, department officials took action against Scot Galligan, the supervisory corrections officer who reported him.

Galligan was reprimanded, suspended for five months and moved from the day shift at Kettle Moraine Correctional Institution, near his home, to the overnight shift at Dodge Correctional, 25 miles away. His offense: Recording conversations with Dittmann to use as proof.

What’s more, not only did Department of Corrections officials deem Galligan’s formal complaint against Dittmann baseless, they are going after Galligan for court costs and attorneys’ fees because he insists they retaliated against him and refuses to drop his appeal.

Documents obtained by the Journal Sentinel show how some of the state’s top corrections officials turned on Galligan, a veteran supervisor who challenged the system, while apparently allowing a controversial warden to avoid serious discipline for potentially illegal actions.

An employment law expert says Galligan’s fears that Dittmann’s actions could open up the prison system to civil liability are on target. And a state senator questions why government resources are being used to go after the whistleblower rather than focusing on workplace behavior that wouldn’t be tolerated in the private sector.

h/t: The Crime Report

“Wisconsin prison population 2.5 times larger than Minnesota’s”

That’s the headline of this local newspaper report on a study comparing the prison populations of the neighboring Midwestern states. The study offers an interesting natural experiment on how much policy decisions — as opposed to sociological factors or crime rate — drive mass incarceration. Minnesota and Wisconsin have roughly similar demographics, geography, size (~ 5 million people), crime rates, etc. (though I’m sure native Midwesterners could point out differences I’m overlooking, they seem similar enough to compare), and yet the two have taken vastly divergent paths:

In 2008, Wisconsin had more than 23,000 people in state prisons, compared to fewer than 9,000 in Minnesota. Yet, despite the marked difference in prison populations, Minnesota had more residents under some form of correctional control–prison, jail, probation, or parole. …

Wisconsin’s larger prison population primarily reflects events that occurred from 1993 to 1999. During that period, Wisconsin added more than six times as many prisoners as Minnesota did. One factor in the rising number of prisoners here was parole changes. Due to heightened visibility of crime as a policy issue, public concern over insufficient prison terms, and resulting political pressure, Wisconsin’s willingness to parole prisoners diminished. According to some estimates, the change effectively extended prison sentences by 16% to 18%.

Taking a different approach, Minnesota passed a community corrections law in the early 1970s and felony sentencing guidelines in the 1980s in an effort to contain the state’s prison population. As a result, growth in Wisconsin’s prison population was two times as fast as Minnesota’s in the 1990s. However, from 1999 through 2008, the number of prisoners in Minnesota rose 50.8%, compared with 9.7% in Wisconsin.

You can also see the difference by comparing Minnesota and Wisconsin using the Sentencing Project’s interactive map, which shows that Minnesota incarcerates 137 per 100,000 residents, while Wisconsin incarcerates 374 per 100,000. Wisconsin’s rate is still well below high-incarceration Southern states (which incarcerate 600-800 per 100,000), and it’s not particularly high for the Midwest, but the comparison with Minnesota suggests it could easily be lower with some targeted policy reforms.

Census Bureau to States: Count Prisoners Where You Want

The U.S. Census Bureau has agreed to release 2010 population data in a way that will give states the option of whether or not to count prisoners as residents of the county where they’re incarcerated. Although it’s too late for prisoners to be counted at their home addresses in the 2010 Census, this announcement paves at least some of the way for reforms being urged by civil rights groups around the country to eliminate the practice of so-called “prison gerrymandering.” The New York Times reports:

A number of states — including Florida, Illinois, Maryland, New York and Wisconsin — are weighing legislation requiring that prisoners be counted at their last known address — for purposes of reapportionment, a change that would likely favor larger and mostly Democratic cities.

In New York, the change could prove pivotal because of the see-saw fight for control of the State Senate and the fact that the state faces the loss of at least one Congressional seat after the 2010 census.

“Most people in prison in America are urban and African-American or Latino,” Representative William Lacy Clay, a Missouri Democrat who is chairman of the census subcommittee, wrote the bureau, but the 2010 census “will again be counting incarcerated people as residents of the rural, predominantly white communities that contain prisons.”
…

Other groups that have lobbied for the change include the Brennan Center for Justice at New York University Law School, the NAACP Legal Defense and Education Fund Inc. and Demos, a research and advocacy organization.

The New York Times editorialized its approval of the Census change here; I previously blogged about the issue here.

No Dungeons & Dragons in the Dungeon

One of many D & D monsters, the "Bonecrusher Skeleton." © 2009 Wizards. All Rights Reserved

There’s been some talk in the blogosphere of the Seventh Circuit’s recent ruling upholding a Wisconsin prison’s ban on the role-playing game Dungeons & Dragons, against a prisoner’s First Amendment challenge. (Note that the ban covers not only the game itself, but also any D & D related publications: novellas, strategy guides, etc.) Here’s one take over at the Volokh Conspiracy, which spurred a series of comments that for some reason merited coverage in the New York Times; Above the Law skewers the Seventh Circuit’s reasoning here. Why the ban? According to the prison warden (as quoted in the opinion), D & D can lead to “fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling” (p. 4).

From a technical legal standpoint, the Seventh Circuit may have been right to uphold the ban, since the standard for judicial review of prison policies is akin to “rational basis review” — basically, as long as the government can come up with a remotely plausible explanation for a regulation, the court oughtn’t interfere. (Though I’d invite readers to read the opinion and the commentaries linked above, and then see how plausible you actually find the state’s justifications.) And sure, it’s easy enough to joke about a role-playing game that revolves around a weird hybrid of medieval fantasy and Tolkien. (To make this a case, in the words of the New York Times, that’s just about “the rights of inmates to nerd out.”) As a policy matter, though, a ban of this type raises questions that go straight to the heart of the entire prison project: