The Many Foes of Discretion in Criminal Cases

The left and the right often are against discretion in criminal justice

The Obama Administration, in the person of Attorney General Holder, has proposed reforms that are intended to make mandatory minimum sentences less common for low-level drug offenders in selected federal drug cases, and, allow federal prisoners to have compassionate early release in certain circumstances (e.g., terminal illness, death of the other parent of the prisoner’s young children). Having advocated for these sorts of changes from the inside and outside, I am very pleased by these policy proposals, but also expect that they will meet with some significant resistance, and not just from the political right.

Mandatory minimums and indeed the broader move in the 1980s towards invariant, tough sentences in drug cases is often misremembered as an entirely conservative invention. It was not, for a reason I have outlined before:

Much of the U.S. public now sees the federal government as a malign, dreaded influence in their lives. Some conservative politicians share this perspective and work hard to fan such popular fears. Meanwhile some liberal politicians see any allowance of discretion and autonomy by civil servants as an invitation to disparate treatment based on race, sex, class, disability etc. These two camps make common cause to tie down the federal government with as many rules as possible.

Many liberals supported the transformation of criminal justice penalties that occurred in the 1980s, with Tip O’Neil being the highest-profile example. Part of this had to do with many of them representing urban areas full of residents who were sick of crime. But it also had to do with many liberals’ instinctive distrust of governmental discretion. Such people argue — not without reason — that if you let judges determine sentences, some of them will hand out stiffer punishments to minority criminals than they do to white criminals convicted of the same offense. Expect at least a few leftists who gain a platform in the coming debate about Obama’s sentencing reforms to raise this concern.

My own view is that mandatory minimum sentences don’t reduce discretion so much as move it from judges to prosecutors, and more generally that (warts and all) I would rather have sentences determined by people with personal knowledge of individual criminal cases than by elected officials in a faraway city. For that reason I would like to see the Congress endorse even more governmental discretion by restoring parole within the federal prison system, which it abolished in 1984. If we are willing to have correctional officials make judgments about who deserves compassionate early release because of illnesses and family tragedies, then we should be equally willing to let the same officials make judgements about who might be released because they are rehabilitated and unlikely to re-offend.

Prison overcrowding and offender releases

Screen shot 2013-08-11 at 15.17.24Gov. Jerry Brown has known for some time that California’s Prison Realignment was unlikely to bring overcrowding within the CDCR’s facilities in line with the SCOTUS ruling in Brown v. Plata. When Justice Kennedy’s majority opinion upheld the three-court decision requiring the CDCR to bring down overcrowding from 175% to 137.5%, the State correctly identified that relieving the pressure in the chamber could be achieved in many ways: it could build more prisons; it could invest in smart and effective probation measures; it could tinker with the sentencing rules; or it could mobilise county facilities to do jobs that were historically reserved for the state. It ultimately settled on the fourth option.

The state’s effort to transfer inmates from state facilities into county jails was a move of legal and political ingenuity. It enabled the Governor to assure citizens that he wasn’t releasing offenders, as Alito had forewarned in his dissent to Brown v. Plata, and it evaded having to raise vast amounts of money to build new prisons, thus protecting Brown’s re-election prospects for 2014.

But Realignment has been, at best, playing at the margins. To be sure, the margins in California’s prison system are huge, and the effects are already visible. Indeed, the recent reductions in the US prison population have been largely spurred on by California’s recent re-arrangements. The Economist even featured a graph this week that suggested the total US ‘prison occupancy rate’ (a measure of the number of inmates relative to the number of prison beds) was below 100%, meaning within capacity. Unfortunately, a cursory search through the source material at ICPS failed to provide sufficient information with which to verify the statistic for myself, or examine any trends in the data. If true, however, I’d hazard the guess that before California’s recent Realignment, the US occupancy rate would have been in excess of 100%.

Screen shot 2013-08-11 at 16.01.25The progress made in California thus far seems to have stalled. Brown claims to have exhausted all reasonable measures to move inmates between correctional facilities within the state, and any further measure would make Alito’s nightmare of thousands of feral offenders loose on the streets a reality. According to the L.A. Times, the CDCR has displaced inmates to county jails almost to the point of rupture, and it is considering relying on imperfect facilities such as low-security detention centres, fire-fighting camps, and facilities in other states. Nonetheless, last week the Supreme Court refused to acquiesce to Brown’s assurance that the CDCR had reduced overcrowding to levels sufficient to comply with Brown v. Plata.

An offender release thus seems inevitable given the political realities. However, the strategy underlying the implementation of Realignment attests to Brown’s reluctance to take politically bold steps – even if those steps require surprisingly little audacity when viewed against the scientific evidence. If a large-scale release happens, in all likelihood it will begin with the elderly and the infirm. This might bring the overcrowding problem in line with Brown v. Plata.

Or it might not. In drawing attention to how California is “stubbornly behind the curve” on criminal justice and incarceration, the New York Times ran an editorial yesterday advocating the establishment of a sentencing commission and a greater focus on connecting released inmates with extant re-entry and rehabilitation services. These are sensible measures irrespective of whether Brown succeeds in reducing overcrowding by the end of the year. But to get a sense of just how conservative Brown has been in trying to relieve overcrowding, it might be instructive to look abroad:

  • Italy currently has one of the worst records of prison overcrowding in Europe (the occupancy rate there is well over 140%). The Italian Senate ruled on Thursday that they will be cutting pre-trial detentions and will use alternative punishments for minor offences.
  • Venezuela will place 20,000 (40% of the total prison population) of its lowest risk, minor offending inmates on conditional release.
  • South Africa intends to dismiss the probation or parole sentence of 20,000 offenders, and grant pardons to a further 14,600 prisoners.

Releasing huge swaths of California’s prison population, as has been done in Venezuela, would be imprudent. But Brown’s reluctance to entertain the idea of offender releases, except as an absolute last resort, shows his inability to recognise just how modest Realignment has been.

Three Lessons of South Dakota’s Correctional Reforms

South Dakota’s correctional reforms teach important lessons

South Dakota has passed an extensive package of legislation that will forestall the planned building of new prisons and invest in community-based supervision and health services. Sentences for violent offenders will stay tough and even in some cases get tougher. But non-violent offenders who have drug, alcohol and mental health problems will be presumed eligible for probation. Similar efforts are ongoing in many states, but South Dakota illustrates three aspects of the state of correctional reform in the U.S..

1. Conservatives are serious about reducing the number of people in prison. It has been noted for some time that a number of conservative thinkers (e.g., Pat Nolan, Bill Bennett) have expressed an interest in correctional reform. But that doesn’t ensure that conservatives holding elected office feel the same way. The reforms in South Dakota, an extremely conservative state in which Republicans dominate both houses of the legislature and also hold the governorship, demonstrate that conservative interest in reform is real and will be reflected in new policies (One could add as further examples the reforms in South Carolina and Texas).

2. Interest in reducing the growth of prisons will not go away when states get their budgets back in balance. This is a commonly expressed fear, but South Dakota undertook its reforms with its annual budget in surplus and a sizable rainy day fund in the bank.

3. Even though prisons are primarily a state issue, federal government action matters for reform. South Dakota pioneered the remarkable 24/7 Sobriety program, an effective community-based response to repeat drunk drivers, many of whom would otherwise ultimately be imprisoned. It was a local invention, but it was made possible by a federal government grant. Likewise, the state’s planned expansion of other alternatives to prison will be supported through federal grant programs that have drawn bipartisan Congressional support starting in George W. Bush’s presidency and continuing into Obama’s. Finally, no one in the White House is using the bully pulpit to whip voters into a frenzy about crime and drugs, which gives state lawmakers more room to maneuver without being seen as soft on crime.

All of which is to say that correctional reform has, thank goodness, a bright future in this country.

The way we talk about prisons

Mike Konczal’s piece from the WaPo linking the economy with declines in the prison population caught my eye, too. Rather than echoing Keith’s point about the manifest falsity – or methodological futility, for that matter – of establishing the association, I’ll highlight a different aspect of the story.

In the five years since the economy tanked, there’s been a recognisable shift in the way people talk about justice policy. The Urban Institute’s John Roman put together a nifty graphic that illustrates how the policy recommendations of various interest groups have aligned in light of recent fiscal instability.

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Continue reading “The way we talk about prisons”

Recessions Do Not Reduce The Prison Population

Recessions do not cause the prison population to fall

Every time the economy stalls, journalists start predicting that crime will soar as a result, even though the historical record completely disconfirms such an equation (as Mark Kleiman has pointed out repeatedly). A trendy extension of this false meme, which gets an airing in Mike Konczal’s balanced Washington Post piece, is that hard economic times caused the recent drop in the prison population.

No, they didn’t. Forgive me please for self-quoting:

The number of people incarcerated went up every single year from the mid 1970s until 2009. Over that more than 30 year period, there have been economic booms and contractions, changes in the relative strength of the major political parties, alterations in the demographic makeup of the US general population, the waxing and waning of drug epidemics, and countless other changes in American life.

The prison population started rising during the mid-1970s oil shock and kept right on rising during the recessions of 1980, 1981-1982, 1990-1991 and 2001. If we want to explain a historic reversal of a multi-decade trend, we cannot logically do it by pointing to a factor that occurred repeatedly — a lousy economy — while that trend was underway.

Look instead for more novel factors to explain why the incarceration rate is finally falling, such as the lowest crime rates we have had in generations, lower fear of crime than in generations, the emergence of effective alternatives to incarceration, and/or, if Kevin Drum is right, the dramatic reduction in lead in the environment.

UPDATE: In response to me, Mike argues that the Great Recession was different than prior recessions in being more severe, and so it did indeed reduce the prison population. The problem with this riposte is that if it is only severe economic shocks that shrink prison populations, then there should have been a huge decrease in incarceration during The Great Depression. But that is precisely the reverse of what actually happened.

SECOND UPDATE: Kevin Drum agrees that the case is not made for recessions, but dings me for saying “novel factors” when of course falling crime is a long-invoked, rational explanation. Fair comment by Kevin and bad writing by me. I mean novel not in the sense that no one had invoked it as an explanation before, but in the sense of something not present as a policy force before. We are in the midst of a multi-decade crime drop — that is novel and could explain why we are seeing something else change for the first time in a long time.

Yet another hunger strike in California’s prison system

Today is the first day of yet another hunger strike for inmates in California’s Pelican Bay supermax correctional facility.

The inmates have stipulated that the hunger strike will continue indefinitely, until five modest demands are met.

Jonathan Simon writes:

Supermax-style prisons are an American abomination that are rejected by most other societies and considered a human rights violation in many. Total isolation of prisoners without meaningful activities, visitors, or meaningful human contact has historically been reserved for disciplinary punishments limited to weeks or months. In California’s SHU scores of prisoners have served more than twenty years of such conditions, and hundreds for more than ten.

To get a sense of the prospects for success of this hunger strike, it’s worth bearing in mind the recent political and legal context. In 2011, the Supreme Court determined that the CDCR was in violation of its inmates’ constitutional rights in its persistent denial of their basic mental health and medical care (read the court’s opinion in Brown v. Plata here). That case resulted in an injunction to reduce massive overcrowding throughout the system, and upheld the decision to place the healthcare system into Receivership. Brown v. Plata wasn’t directly intended to alleviate to the situation faced specifically by inmates in the SHU. But Jerry Brown’s response to the court injunction is directly relevant to this hunger strike.

The Governor’s office has repeatedly requested that the court vacate its Receivership. Each time, it cites its claim that the CDCR has resolved the problems that precipitated the mid-‘90s cases that culminated in Brown v. Plata. On each occasion, these requests have been rebuked; the most recent time (in mid-April), the court’s rejection of the Governor’s request was especially humiliating. It reminded the Governor of the Supreme Court’s admonition:

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. [Emphasis added]

Things aren’t improving, the Governor’s office thinks they are, and inmates at Pelican Bay are willing to starve themselves to death to prove their point.

If you would like to contact Governor Brown, here’s the link.

Angela Hawken, Caesare Beccaria, and swift and certain sanctions

RBC readers will not be surprised to hear that HOPE probation and similar programs have great potential to reduce drug abuse, crime, and incarceration. But it may come as news to readers of Slate, and Sam Kornell gives a very good brief account of how and why swift and certain sanctioning works, and its potential to transform the criminal justice system. (Had it been my story, I would have put more emphasis on the managerial challenges that confront anyone trying to make such a program happen.)

Naturally, the story mentions Steven Alm, the judge who made it happen. Surprisingly and appropriately, the focus is on Angela Hawken, who did the research that showed HOPE worked and has vigorously spread the word since, against strong opposition from the friends of business-as-usual in criminal justice and drug treatment. Though the story doesn’t mention it, it was Hawken, more than anyone else, who made the Washington State version of swift-and-certain (called WISP) get started and succeed.

As a bonus, Kornell also credits Caesare Becccaria, who wrote most of it down in 1745. Ideas don’t always matter, and people who think for a living don’t always produce good ones. Correct idea that matter deserve more celebration than they get, and the Beccaria/Hawken has earned its moment in the spotlight.

The Aryan Brotherhood and the prison-gang problem

Lawless, overcrowded prisons are machines for producing Nazis.

So far, it’s not clear whether the Texas chapter of the Aryan Brotherhood prison gang is carrying out a systematic assassination campaign against criminal justice officials. What is clear is that America’s overcrowded, lawless prison systems are a machine for transforming apolitical white prisoners into committed violent racists by forcing them into neo-Nazi gangs for self-protection. Black and Latino prisoners are forced into their own gangs, but those tend to be purely criminal rather than political. This should be regarded as a crisis; currently it isn’t. And no, SuperMax is not a solution.

David Skarbek of University College London has a fascinating book on the larger problem coming out from Oxford. Watch for it.

Why The Prison Population is Falling

I was glad to see that my post on the declining rate of incarceration in the U.S. was picked up by a number of other blogs and newspapers. In those fora, a number of people argued that the recent decrease is simply a function of state budgets being tight. The Pew Charitable Trusts has a thoughtful analysis out suggesting that it is more complex than that.

The number of people incarcerated went up every single year from the mid 1970s until 2009. Over that more than 30 year period, there have been economic booms and contractions, changes in the relative strength of the major political parties, alterations in the demographic makeup of the US general population, the waxing and waning of drug epidemics, and countless other changes in American life. What that should tell us is that any simple explanation for why America has the prison policy it does at any given time is wrong or at least incomplete.

Pew notes that over the past 5 years, incarceration fell in 29 states (ruling out another simple explanation: that this is all due to the court order to reduce overcrowding in California prisons). The factors Pew describes as important are

(1) The evident success of states like Texas which have reduced imprisonment, costs and crime at the same time

(2) Widespread public/political support for reduced incarceration, including among influential conservatives

(3) Research-based alternatives to prison. These include “swift-and-certain” probation and parole initiatives such as HOPE Probation and 24/7 sobriety, both of which have been touted by the Obama Administration.

To Pew’s list, it would be reasonable to add the aging of the incarcerated population because older prisoners are unlikely to re-offend after release. Also important have been the sharp reduction in crime and attendant decline in public fear of victimization, and, the almost total disappearance in Washington and many state capitols of lock-em-up rhetoric regarding low-level drug crimes.

Drones against prison rape

Cheap model helicopters with video cameras could transform the problem of violence and contraband in prison. Can you say “Panopticon”?

Too many prisons are terrible places. Inmates stab and rape one another, mostly with impunity, to the point where gang membership becomes a survival strategy. Gang leaders maintain the capacity to order assaults both inside and outside the institution. Contraband markets flourish. Misbehavior by corrections officers – both brutality and corruption – takes place behind wall of silence and the shield of impunity.

Part of the reason is that the prisoners greatly outnumber the guards, who in turn greatly outnumber their supervisors. The higher someone gets in the correctional hierarchy, the less contact that person has with the realities of the cellblock. No doubt some wardens are content to be complicit in their subordinates’ misconduct – if not out of sympathy (almost all of them started out as line correctional officers), then to maintain labor peace – but surely most would prefer to run more humane and lawful institutions. Most prisons now have surveillance cameras; as a result, those who want to commit assaults or deal contraband simply identify locations where the cameras do not point.

The revolution in information and communications technology, plus the fad for high-tech model airplanes, offers an important piece of the solution to this apparently intractable problem.

For a few hundred dollars, you can buy a toy chopper (controlled from your laptop or smartphone) equipped with one or two HDTV cameras and a transmitter. The devices are a foot or so across, weigh around a pound, make about as much noise as the cooling fan on a computer, and fly for an hour on a battery charge.

Now imagine a prison with fifty or so of those devices flying pre-programmed but more-or-less random patterns, their cameras transmitting to a bank of monitors watched by two or three officers (better yet, monitors in a remote facility watched by two or three members of some other union) and recorded. Suddenly no place is safe from surveillance. If the watchers have direct communication with the shift commander, it will be possible to intervene immediately; even if not – even if there are no live watchers at all on some shifts – the evidence will be there, and available to the warden. No wall of silence, no impunity for inmates or staff. Fewer assaults, a much smaller contraband market, confiscation of illicit cell phones use by gang “shot-callers,” and much less need for punitive “administrative segregation” (aka “The Hole”) or the even-more-horrible (criminal in my view) “SuperMax.” Cost: trivial.

Can you say “Panopticon“? I was sure you could.

No, I don’t expect it to happen. But if it doesn’t, the onus of the continued crimes and illicit transactions is squarely on the corrections commissioner. Nothing is stopping it but lack of imagination and determination.