Re-think Sentencing for Violent Offenders: Philly DA Larry Krasner

Six months after taking office, Philadelphia’s controversial DA says incarceration levels have dropped as a result of his reforms, with no increase in most categories of violent crime. But he argues that further reductions require changes in the way the justice system deals with individuals convicted of violent offenses.

The nation cannot effectively reduce prison populations unless the justice system changes the way it handles violent offenders and sex criminals, Philadelphia District Attorney Larry Krasner said Tuesday.

“This is the topic that the left and the press never want to talk about, because this is the tough one,” he told journalists at a John Jay College conference.

“Young people are all in favor of legalizing weed, but as soon as you say violent, there’s a certain visceral response,” said Krasner, who delivered the keynote luncheon address at the conference on “Rural (In)Justice: America’s Hidden Jail Crisis.”

“And yet the reality is, if you’re going to take a serious shot at reducing levels of incarceration, you do have to address this issue.”

While he acknowledged that the gravest offenses necessitate long sentences—“none of us are going to tolerate stranger rape, none of us are going to tolerate serial murder, none of us want Charles Manson walking around”—Krasner stressed the exorbitant cost of incarceration, and the potential good those funds could do in other areas.

He estimated that a five-year sentence in Philadelphia cost $210,000–roughly the same price tag as five public school teachers’ annual salaries.

“We disconnected all of this from the discussion of where the assets might otherwise have gone,” he said.

“Somehow we got to the point where one year just felt like five years, because we’re not talking about $210,000, or $420,000, and what that could have meant in terms of prevention in the long term.”

Krasner acknowledged that perpetrators should pay a price for crime, but “the price doesn’t have to be much higher than in every other country, and so debilitating that we bankrupt the public schools in Philly.”

The DA, who was elected last November after a long career as an outspoken public defender in America’s sixth-largest city, entered office with a sweeping plan to transform Philadelphia’s prosecutorial practices.

Less than three months after taking office in January, he issued a memo instructing assistant district attorneys to cease charging certain offenses entirely, and to charge lower gradations for others.

In addition to declining and lowering charges, Krasner recommended that district attorneys utilize diversion more frequently, implement bail reform, and opt for lower sentences when they do seek convictions.

“Don’t come up with artificial obstacles” to decarceration, he said, citing the example of a statute that prevented undocumented immigrants from being sent to diversion when charged with driving under the influence because they were prohibited from owning a driver’s license.

“What’s the big deal? So you expand it,” he said. “You expand the provisions that allow people to get in, and maybe you require more of those people so that there’s a level playing field. But you expand it.”

Currently, one of Philadelphia’s four jails stands empty, the result of efforts that Krasner conceded began before he was elected but accelerated since he took office. He said he expected the jail population to continue declining, a boon to taxpayers that, he pointed out, has done no discernable harm to public safety.

“The result of all these people getting out of jail is a reduction in homicides, a reduction in rapes, a reduction in armed robbery,” he said. “Shootings are up four percent, everything else in the violent category is down.

“Among the property offenses, the bottom line is a zero percent change.”

Krasner said the media and political opponents had warned during his election campaign that his policies would result in Philadelphia being overrun by violent criminals and “zombies.”

“But it turns out when you let some of the zombies out of the jail, they’re not really zombies,” he said.

He added that while he continued to face opposition from tough-on-crime advocates and from the Fraternal Order of Police, a substantial number of Philadelphians welcomed his reforms—including, he noted, the Guardians, the association representing African-American police officers in Philadelphia.

“The jail population…is dropping 13 a day [since] our policies went into effect,” he said. “So there’s no question there’s an impact, and there’s no question that the impact is significant.”

Elena Schwartz is a TCR news intern. She welcomes comments from readers.


Incarceration Decrease? Drop in Prison Numbers Called ‘Anemic’

Although the US prison population has begun to decline, researcher Malcolm C. Young says the rate of decrease is so low that the goal of prison reformers to cut prison populations by half would unlikely be reached until 2068.

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year—more states than had experienced decreases in any recent year. The average decrease was three percent.

In 42 states, prison populations were lower than they had been recently. Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations.

If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like to reduce prison populations to half of what they are today for another 50 years, until 2068.

Moreover, the current rate of decrease may not hold, according to Young.

The prospects for a more rapid de-incarceration are poor unless and until many more states use strategies that have been effective in the handful of states that are significantly reducing prison numbers, Young believes.

Only 13 states have significantly reduced their prison populations below the levels they were at the end of 2000. Seven of those 13 states accounted for most of the national inmate population drop.

California, Connecticut, Illinois, Maryland, Michigan, New Jersey, and New York reduced their collective prison populations by 73,328 between 2000 and 2016, accounting for about two-thirds of the total by which all states reduced prison numbers.

Another 14 states have at times demonstrated a capacity for reducing prison populations.

The experiences in both sets of states show that reductions at rates of three to five percent annually, and even higher, are well within reach of governments motivated to act, Young writes.

The federal prison system, the nation’s largest, contributed to the national decrease. Its population at the end of 2016 was 13 percent under its highest point, in 2011.

Young found that prospects that most of the 13 states responsible for much of the national decrease will continue to reduce their prison populations are good.

For example, Massachusetts has the second-lowest incarceration rate in the nation (after Maine), and the Vera Institute of Justice predicts further decreases. New Jersey will likely continue to reduce its prison population as a result of pretrial reforms signed by Gov. Chris Christie that took effect last year.

In New York State, further decreases are likely if officials can encourage fewer prison commitments from areas outside of New York City.

On the other hand, California, which decreased its prison population by 40,926 in six years to comply with a US Supreme Court ruling, increased its prison population in 2016 by 0.9 percent. California corrections officials predict an annual 0.8 percent increase in coming years.

In Illinois, Gov. Bruce Rauner cut the prison population, incurring little opposition from the same Republicans who savaged his Democratic predecessor’s more modest efforts. Were he to lose his bid for reelection, it is not a given that a Democratic administration would carry his plan forward.

Since 2010, Texas decreased its prison population by 6,749 (4.1 percent). Prospects that the trend will continue are iffy because state legislators have been considering new sentencing enhancements.

Young found that decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.” Recently enacted reforms have encountered opposition.

In Louisiana, advocates have been concerned that legislators will roll back recently enacted reforms designed to reduce incarceration. In Utah, reforms that relied on treatment and housing programs are at risk because of a lack of funding for alternative programs. In Florida, legislative reforms have not led to the reductions in prison populations for which advocates hoped.

In the federal system, prospects for continued decreases are fading. A bipartisan reform bill that would have reduced some federal sentences seems stalled, while prosecutorial and sentencing policies announced by Attorney General Jeff Sessions will soon add to the prison population.

Young’s report identifies a third group of 23 states that have yet to demonstrate a capacity to reduce prison populations. At the end of 2016, their combined prison populations were 86,866, or 31 percent higher than at the end of 2000.

The report recognizes that new developments might bring significant reductions in prison numbers.

The election of reform prosecutors like Larry Krasner in Philadelphia and Kimberly Foxx in Cook County, Illinois, signal a voter rejection of “tough on crime” and “lock-em-up” policies that have driven incarceration.

Another development lies in an emerging appreciation of the relationship between local jail incarceration and prison numbers by the MacArthur Foundation, which is funding local justice reform through its Safety and Justice Challenge. Were bail reform to spread, there would likely be a significant reduction in prison numbers as well as in jail counts.

Similarly, reforms in policing should reduce the use of jails and, indirectly, the number of people who are sentenced to prison.

The report concludes that if California and the federal system increase their prison populations, it will be difficult to sustain the current rate at which prison populations are decreasing.

Young calls for reexamining the effectiveness of prison-reduction strategies.

“[Hopes to] to end mass incarceration can’t be grounded in a fiction that an annual one percent reduction in prisoners will get us anywhere, or that limited successes in a few jurisdictions will end mass incarceration in the country as whole.”

His report contends that national, state and local officials should turn for guidance to states that have achieved significant, lasting reductions in prison incarceration and steer clear of approaches that have failed to produce results.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. He welcomes comments from readers.


Party Affiliation of Judges Can Determine Sentencing Length: Study

GOP-appointed judges hand down longer sentences to African Americans than whites for similar offenses, according to a study by two Harvard professors.  They argue the current polarized political climate in judicial politics is a “source of persistent racial and gender disparities.”

The political affiliations of judges contribute to racial and gender federal sentencing disparities, according to a forthcoming study in the American Economic Journal: Economic Policy.

The study found that Republican-appointed judges sentence black defendants three months longer than they do for non-blacks, and female defendants two months less than males, who committed similar offenses, compared to Democratic-appointed judges.

The researchers by two Harvard Professors of Law, Alma Cohen and Crystal Yang, used data from 1999-2015, analyzing over 500,000 federal defendants, and 1,400 judges. They found these disparities account for 65 percent of the baseline racial sentence gap, and 17 percent of the baseline gender sentence gap.

“Our findings suggest that judicial politics may be a source of the persistent racial and gender disparities in the federal criminal justice system, and that politics may play an even larger role today under the current state of increased sentencing discretion,” the authors said.

The authors went on to note that since the federal justice system is the “source of the largest and fastest growing prison population,” the appointment of federal judges is a critical contributing factor in racial disparities.

The study quotes other researchers as saying, “Seldom has (judicial selection) seemed more acrimonious and dysfunctional than in recent years.”

Earlier research indicates that black defendants receive harsher sentencing than similar white offenders, the authors say, and that male defendants are given substantially higher sentences than similar female offenders.

Research cited by the authors also indicates that Republican-appointed judges give longer sentences for the same crime than Democratic-appointed judges. This study builds off these studies and applies it to racial and gender sentencing gaps.

Lower federal judge appointments have gotten more attention in recent years as a result of the increasingly polarized political climate.

Judges are confirmed unanimously less often now, and appointments are more fervently debated among senators on different sides of the political spectrum.

An important factor the researchers analyzed was the effect of a Supreme Court decision in 2005, United States v. Booker, which gave judges more discretion in sentencing. Before Booker, judges were mandated by the United States Sentencing Commission to use the Federal Sentencing Guidelines.

This mandate applied to all federal offenses committed after November 1, 1987. After Booker, the guidelines were ruled as advisory, as opposed to mandatory.

“Republican-appointed judges sentence black defendants to 4.7 months longer in prison relative to non-blacks compared to their Democratic counterparts in the post-Booker period, a doubling of the gap prior to Booker,” the study said.

Additionally, the gap increased post-Booker because Democratic-appointed judges reduced their sentencing for Black offenders compared to non-black offenders.

The researchers also found that the sentencing disparities were substantially larger for more severe crimes, and that, “the magnitudes of the gaps are twice as large among the more serious offenses.”

The study also found a number of other disparities in sentencing. Defendants who are non-U.S. citizens receive longer sentences than U.S. citizens, and defendants with more dependents receive longer sentences that defendants with fewer dependents.

Additionally, “Defendants who plead guilty and defendants with higher education receive lower sentences than their respective counterparts.”

The researchers also detail how prosecutors factor into sentencing disparities when it comes to charging and plea bargaining. They found that prosecutors can adapt their initial charges or plea bargain offers, based on their prior knowledge of the judge and his affiliations or propensities. This is called bargaining “in the shadow of the judge.”

The study also stated, “Prosecutors are significantly less likely to offer substantial assistance motions to black defendants relative to non-black defendants, while they are more likely to offer substantial assistance motions to female defendants relative to male defendants.”

The researchers note that while prosecutors do have a substantial effect, their data still indicates that judges play an important role in sentencing disparities.

This summary was prepared by Dane Stallone, a TCR news intern. Readers’ comments are welcome.


Why Jail is No Place for the Mentally Troubled

For lack of alternatives, thousands of mentally ill individuals are trapped in the justice system. In a conversation with TCR, Alisa Roth, author of “Insane: America’s Criminal Treatment of Mental Illness,” says change will only happen when we reexamine our attitudes towards mental illness.

In her career as a journalist, Alisa Roth has written about people in what she calls “forgotten communities,” such as immigrants and the poor. But when she began focusing on the mentally ill trapped in the U.S. justice system, after a friend’s brother was locked up, Roth discovered what she came to realize was the most forgotten community of all.

“I can’t think of a group that’s more reviled and more misunderstood,” she told TCR. In a discussion with staff writer Isidoro Rodriguez about her new book, “Insane: America’s Criminal Treatment of Mental Illness,” Roth, a former Soros Justice Fellow, describes how jails and prisons have become the nation’s principal institutions for treating mentally troubled individuals, and suggests that strategies for developing more humane, treatment-oriented alternatives have to begin at the state and local levels.

The Crime Report: What was the catalyst for writing this book?


Courtesy Basic Books

Alisa Roth: I can’t think of a group that’s more reviled and more misunderstood than people with mental illness who are in the criminal justice system. We talk about the issue of race in the criminal justice system, we talk about the issue of poverty in the criminal justice system, but we don’t talk about mental illness. These three intersect and overlap, but we can’t think about global reform without addressing the mental health question.

As I mention in the book, I have a friend whose brother developed a severe mental illness and committed a horrible crime. As I was thinking about this whole system, it kept coming back to him. If we as a society can allow him to see an alternative outcome, and not spend the rest of his life in prison, we can allow that for other people who have done less morally or criminally complicated things.

TCR: Through the process of this book, what hurdles did you have to overcome?

AR: I chose two of the most closed systems to look into. The criminal justice system is extremely closed in terms of access, in terms of data, and in terms of information. Likewise, the mental health care system is bureaucratic and complicated. So just figuring out where treatment is being provided, and who should be providing that treatment is difficult.

Then there’s the whole health care aspect. People are not allowed to, or are unwilling to, share information about treatment. And there’s the stigma question in both systems. There is still shame attached to having a mental illness or having a family member with mental illness. We march for breast cancer or AIDS, but we don’t want to talk about mental illness and we don’t want to admit it. So, getting people to open up and say “yes, I do have this issue” or “yes, my child does have this issue and these are the struggles we are going through,” is very difficult. I am very grateful to all the people who were willing to share their stories with me.

TCR: How did dealing with this affect you, and how do you move forward after seeing what you have seen?

AR: I feel a great responsibility and duty to share these stories and spread them. I have the means to tell the world about these horrible situations, whether it’s the really awful abuses or just the day-to-day low-level abuses of being locked up with a mental illness. So, I feel privileged to share that.

Keeping that in mind was a way to mitigate the awfulness of it, but it’s traumatic reporting. I had a lot of nightmares about jail and prisons. I have a lot of friends who work in this universe, so it was great to be able to compare notes and talk about what we have seen. It is traumatizing and exhausting, but I kept thinking that I got to walk out of there at the end of the day, and I needed to take advantage of that to tell the world about how bad the problem is.

TCR: One of the subjects in your book is the practice of solitary, and you note that it is still in effect despite being considered a form of torture by the United Nations. Why do you think it is still being practiced in the U.S.?

AR: There are a lot of pieces that go into this answer. Unfortunately, we have abandoned the notion of reform and rehabilitation in our criminal justice system. We’ve moved back to the punitive notion. In some measure we think that people who are locked up in jail or prison deserve what they get. There is a dehumanizing aspect to the whole criminal justice system, and solitary confinement is part of that. If we don’t think of somebody as a full human being, then it becomes easier to do something really awful to them. If you think of this person as your brother, or our uncle, or your husband, it’s much harder to lock them in a box 23/7.

There’s also the fact that so many of us don’t know what goes on in the criminal justice system. The system as a whole is so abstract for such a large portion of our population, that we just don’t think or know about it. People have no idea that there are tens of thousands of people locked in solitary confinement on any given day. In a lot of places and for a very long time it’s just been how it’s done. It’s a very easy solution to put someone who is being unruly or difficult out of sight and out of mind. I think it speaks to a larger issue: We take people with mental illness, we lock them away, someplace we don’t need to see them. If we put them in jail or prison we don’t need to see them or step over them on our way to Starbucks in the morning. Solitary confinement is a reflection of that. But it makes everything so much worse.

Alisa Roth

Alisa Roth. Photo by Matthew Spence

TCR: Your book also criticizes the dangerous mistakes made by judges, and attorneys, who have no experience with the mentally ill. One example is your story of Jamie Wallace, a young boy suffering from mental illness and multiple physical disabilities, who eventually killed himself in prison due, in part, to a judge’s inability to understand his circumstances. How do we increase awareness and understanding of mental illness so that we may better avoid tragedies such as this?

AR: As awareness of the problem of large numbers of the mentally ill in the criminal justice system grows, judges and attorneys are more attuned to it. It’s not that people don’t know it’s there, but it’s as much as about changing attitudes as anything else. I talk to a lot of judges and I’ve said “Hey, in a lot of cases you’re being asked to make what’s effectively a medical decision and you’re not a doctor; you’re a judge. ‘

The best answer I heard, and it makes sense to me to a degree, is the judge who that’s what he does all the time. He takes the best information he can get and makes a decision based on that. So, he’s not making a medical judgement, per se; he’s taking the information that the psychiatrist, the therapist, and the attorneys give him and using that to make a decision. Jamie Wallace’s case was particularly egregious. He was so young, so sick, and had a developmental disability on top of it. I found it heartbreaking to think that the judge couldn’t see a way to understand. And the judge was playing very much by the rules.

Jamie Wallace was failed by the system at every level, over and over again. A forensic psychiatrist who read about him said he should never have been declared competent or even been standing in that courtroom. The judge made an awful decision, but he also made a mistake in letting him even be in that courtroom that day. You have to wonder how it would have been different if he had been wealthier, or his parents had been more educated, or if he had been in a different state.

TCR: Jamie Wallace’s story is an example of the mistakes that can be made as a result of the disorganized bureaucracy of the criminal justice system. At a time when so many are pushing for better training within that system to fix the problem, and others are fighting to keep the mentally ill out of that system entirely, which do you feel is the better option?

AR: In an ideal world, we would be able to keep everybody with a serious mental illness out of the criminal justice system. In an ideal world, we’d be able to keep a lot of people without a mental illness out of the criminal justice system. We lock up a lot of people very easily. I think that diversion is absolutely critical, but in order to make wide scale diversion possible, we can’t just look at this little tiny piece of the problem. We have to remember that we are operating in a very large ecosystem, not just of criminal justice but also of mental healthcare. We need to see wide-scale reform of both these systems so that people aren’t getting to the point where they’re so sick.

You see people in jail and prison who are sicker than a lot of people you see in psychiatric hospitals. We need to be catching the diseases earlier and treating them earlier. It’s great to train the cops to not arrest people, but if you don’t have some place for the cops to take them that’s not jail, they’re still going to wind up in jail. That’s what happened in San Antonio when they created their crisis center system. [They realized] you can train cops as much as you want, but they’re still going to take people to jail if there’s no other option. The other part of it is, as long as we are going to have people that end up in the criminal justice system, we have to make sure that when they’re there, they’re getting the treatment that they need and not just being warehoused in prisons.

TCR:A popular talking point now is de-institutionalization, starting when the majority of state-run mental health hospitals were closed during the 1960s. However, your book insists that there were other, more important, causes for the problem. Can you expand on that?

AR: De-institutionalization is a fabulous talking point. It has this very neat narrative: Dorothy Dix found people locked up in jail; realized this was not the place for them; they weren’t getting the treatment they needed; wardens were saying they couldn’t handle this; she pushed for the creation of the asylum system; everything was great until it all went to hell and we had to open up the doors and let everyone out. Then, without treatment, people were ending up in the criminal justice system. And it has a very neat solution: if this is how we got there, then all we have to do is treat the mental illness and we’ll get people out of the criminal justice system.

Unfortunately, it’s way more complicated than that. Even when you look at the heyday of institutionalization, during the middle of the last century, there were a lot of people in institutions, but it was not the majority. There were still a lot of people living at home or elsewhere, or getting treatment in the community. The population in institutions tended to be older, white, female, and very heavy on people with a diagnosis of schizophrenia. The people now locked in the criminal justice system are overwhelmingly young, male, and not white.

I think we also have to look at the story of mass incarceration. We’ve started locking up way more people than we ever did…and when you cast such a big net, of course you’re going to pull in a lot of people with mental illness. When you break it down even further and look at co-occurring substance use disorders, a very large majority of people with mental illness in the criminal justice system have a co-occurring substance use disorder. So, if we’re arresting tons of people for drug possession, drug use, drug selling, drug dealing, it makes perfect sense that we’ll pick up people with mental illness.

Using policing tactics such as “broken windows” and “stop and frisk,” allowed us to lock up huge amounts of people [and] made it easier to arrest people with mental illness. I think that the story of mental illness in the criminal justice system is as much a story of mass incarceration as it is of de-institutionalization. The one piece of the story that is important, even if we don’t quite tell it right, is that we do have a severe lack of mental health care in the community and we have made it extremely difficult to get treatment for mental illness. But it’s not that everybody was getting treatment in a hospital and now they can’t get it, we just don’t have that and we’ve never had it.

TCR: How can we get people to start viewing mental illness seriously?

AR: I think we’re starting to move in that direction, very slowly. We’re seeing more people acknowledging an issue with depression or anxiety. We’re still not seeing a lot of actors come up at the Oscars and mention that they have schizophrenia, but I think it’s becoming more socially acceptable to talk about these things. We know that people can change, and society can change. There was a time that people didn’t talk about HIV or cancer, and now we wave flags for it. We need to get over the fear and stigma [attached to] mental illness in our society. The narrative in the media and in politics that links mental illness and violence is very damaging. And it’s hard to get over that stigma when every time something bad happens somebody is out there pointing a finger at mental illness.

TCR: Are tools such as Crisis Intervention Teams (CIT), deescalation and community policing having a positive effect on the problem?

AR: Like so many things in criminal justice, there is not a ton of data or evidence-based research to show one way or another. The data in places such as Miami or San Antonio show that these things work. Miami says that it’s cut the number of officer-involved shootings. In San Antonio, the system has prevented them from expanding the jail. People who study policing say that CIT is just good policing—-going back to the kind of policing we had before “professionalized” law enforcement. It was the cop walking the beat who knew the people in the community. There’s no reason to run into every situation like it’s a battleground. Police officers always talk about how they see people on the worst day of their lives. That narrative is used sometimes as a reason why you need to be on your guard. But I’ve also heard it used as a reason to be gentle, kind, and thoughtful because they’re there to help.

Getting police to respond in a more thoughtful, more community/medically oriented way, instead of the tough, warrior way, is terrific. The big caveat is that if you don’t have the whole system set up to accommodate this it can only get you so far. You might deescalate a particular situation, but if you don’t have any longer-term solutions, you’re going to be back picking up the same person with no place to go. Often communities think CIT will be a step to solving the problem, but you have to think about how you’re going to divert, what’s the mental health treatment going to be, and how do we make sure we’re not picking people up again next week or next month.

TCR: Does change need to start at a federal level?  And do you see potential for change under the current administration?

AR: The thing about criminal justice is that so much of it happens on such a local level that, on the flip side, a lot of reform can also happen on a local level. If I’m in Manhattan, and get arrested, it could potentially be a different outcome then if I’m in the Bronx or New Jersey. Because it’s so local, I think the federal question is almost irrelevant. Even the laws of involuntary commitment are handled at a local level.  I think with a lot of laws, particularly with HIPAA (the Health Insurance Portability and Accountability Act) and involuntary commitment, it really comes down to a very narrow line of navigating between civil liberties and safety for the person and the public.

We obviously don’t want to go back to the time when somebody could have a child committed to a hospital for not being religious enough or dating the wrong person.  On the other hand, I think we’ve made it so difficult to get somebody hospitalized that we’re in this perpetual crisis management mode.  The way it’s set up now is that you really have to be at a crisis point in order to make involuntary commitment possible.  Likewise, with HIPAA, I don’t want my business broadcast all over the place.  On the other hand, the very nature of mental illness means that the person is not, necessarily, capable of making decisions for himself, or even providing the information that the doctors need.  I’ve heard families talk about managing to get their adult child hospitalized, but then not being able to convince the doctor to talk to them about what has or hasn’t worked in the past.  As with any other illness, the more information the clinician has, the better they can treat the problem.

Isidoro Rodririguez

HIPAA is also widely misunderstood. It’s used as an excuse for stonewalling families and other people trying to get information.  I think the more important question, is how do we figure out how to loosen these laws a little bit to make things easier and more effective without throwing all the civil liberties out with it.  As for the current administration, I think this is a big wildcard.  It doesn’t seem to be a big priority except on those occasions when something awful happens and suddenly there’s talk of bringing back asylums and more mental health care.  Between seeing real change at a local level or at a federal level, I have a little bit of hope that at the local level there is potential for reform.

Isidoro Rodriguez, a staff writer for The Crime Report, covers policing and mental health issues. He welcomes comments from readers.


Legislation Alone Won’t Decarcerate America, Warn Advocates

Reducing US prison populations requires a strategy that engages all the players in the justice system, from courts to community residents to the media, a panel at NYU’s Brennan Center for Justice was told.

Changing state and federal guidelines on sentencing and bail won’t be enough to reduce America’s prison population, according to two of the nation’s foremost advocates for justice reform.

“It’s going to involve litigation, it’s going to involve organizing, it’s going to involve academia, (and) it’s going to involve elevating and honoring the voices and efforts of those who are most impacted by the system,” says Robin Steinberg, a co-founder of the Bronx Freedom Fund, which has been a prominent player in the movement for bail reform in New York City.

“There is no one strategy that works,” Steinberg, who is now CEO of The Bail Project , a national effort to reduce racial inequities in bail, told a panel last week at the NYU School of Law’s Brennan Center for Justice.

“So it’s going to involve the media, it’s going to involve certain communications strategies….whatever leads us to change the narrative.”

Judith Greene

Judith Greene. Photo by John Ramsey/TCR

Steinberg’s comments were echoed by Judith A. Greene, a former Soros Senior Justice Fellow and contributor to the new book, Decarcerating America: From Mass Punishment to Public Health, who described how a combination of “organizing, litigation, public education, and ballot measures” was responsible for a 31 percent decline in New Jersey’s prison population between 1999 and 2014—one of the highest decarceration rates in the country.

New Jersey’s effort began with “litigation against a parole board that wasn’t doing its job,” received a boost from a report by the Families Against Mandatory Minimums (FAMM) group advocating the elimination of  mandatory-minimum drug sentences, and was reinforced by changes in plea guidelines established by the state attorney general’s office, Greene said.

“Then finally about three or four years ago, about the same time New York dropped the Rockefeller Drug Laws, the state legislature essentially took the last legal legs out from under the drug school zone laws,” she added.

“So it was a combination….they didn’t have ballot measures, but they had organizing, they had civic engagement. And they had an elite body in the state’s highest court pushing to effect major drug reform.”

Speaking about bail reform, Robin Steinberg commented that the Bronx Freedom Fund, founded in 2005, was borne out of frustration “at watching bail get set on clients, and watching our clients get hauled into jail cells and the inevitable plea of guilty…and at some point my co-founder said we should just start a bail fund to bail people out.”

It took the Bronx Freedom Fund two years to find Jason and Joe Flom, the primary investors in their project. The fund finally took off in 2007 and began to bail people out.

“The lawyers in the Bronx Defenders would refer clients that they thought would be eligible for the bail to the Bronx Freedom Fund,” she said. “The [fund] would then do an interview and began to pay bail.”

What the Bronx Freedom Fund learned after being in operation for eleven years “exploded our beliefs” about bail, Steinberg said.

Counter-intuitively, the results of the Bronx Freedom Fund showed that people do come back to court even when their cash isn’t at stake.

“Once we started using donated dollars to pay people’s bail and we began to learn that 96 percent of our clients came back to court even though it wasn’t their money, and they had nothing at stake in terms of the money,” she continued. “[That] kind of exploded our ideas about money being an incentive to bring people back to court.”

Freedom Fund staff discovered that “97 percent of clients held on misdemeanors in The Bronx were pleading guilty, and when we paid people’s bail with philanthropic dollars, what wound up happening was almost half the cases got dismissed,” said Steinberg.

“The majority of the other half of the cases wound up in non-criminal dispositions—which have far fewer collateral consequences.”

The strategy of paying for defendants’ bail utilized by the Bronx Freedom Fund is known as a revolving-bail system.

The panel, titled “Decarcerating America,” was moderated by Nicole Fortier, Counsel at the Brennan Center for Justice Program.

In another, earlier, example of a multi-pronged decarceration approach, Greene described how New York City evolved from a gang enforcement strategy, which had led to the over-incarceration of youth in poor, minority neighborhoods during the 1950s, to programs involving street workers who could help young people find alternatives to gang involvement.

After reform-minded Mayor John Lindsay was elected in 1966, “the city…. listened to sociologists who said this was a youth problem more than a crime problem, pointing out that most kids who are in gangs are not marauding and shooting people,” she said.

New York began applying a “social intervention” strategy that involved a range of innovative approaches, including hiring former gang leaders as mediators.

As a result, said Greene, New York was able to avoid the kind of gang violence that plagued Chicago and Los Angeles.

Officials in many cities across America still haven’t picked up on the lesson, she said.

“It breaks my heart to see the gang enforcement strategy travel east,” said Greene.

Files for this story were provided by TCR news intern John Ramsey. Readers’ comments are welcome.


Back to Nothing: Prisoner Reentry and the ‘Virtual City’ of the Disenfranchised

On an average day in an average year, around 1,700 people are released from federal penitentiaries and state prisons. The odds of successfully reintegrating into civilian life are stacked against most of them, says a California researcher.

On an average day in an average year, around 1,700 people are released from federal penitentiaries and state prisons, back into the poor and segregated neighborhoods from which they were forcefully removed months, years, or decades earlier.

They join what amounts to a mid-sized city, with a population that grew by 626,000 just in 2016, that does not appear on any map of the United States. The residents of this “virtual city” are scattered across the country, but they share some important characteristics.

Many are Black or Latino/a, and the vast majority are poor, unemployed, modestly educated, insecurely housed, politically disenfranchised, affected by some physical or mental illness, and exposed to heavy surveillance by a range of law enforcement agencies.

All have criminal records—a state-sanctioned stigma that normalizes their status as second-class citizens and de facto legitimizes their discrimination by employers, welfare officers, lenders, landlords, and neighbors, among others.

This is the ongoing reality of prisoner reentry in the U.S., a social emergency largely ignored by mainstream society and its media.

In an attempt to document the multiple forms of social suffering endured by these returning citizens, I conducted ethnographic research into one population group of that “city” between 2011 and 2014: a group of formerly incarcerated men who had been recently released from prison and were facing the challenge of reintegrating into a racially segregated neighborhood in West Oakland, CA.

The entry point into the field was provided by a community clinic situated in the heart of West Oakland, which provided free basic healthcare services to poor residents of the area. In addition, the non-profit organization that ran the clinic offered some volunteer and employment opportunities as staff members to a small number of recently released prisoners.

During the years of fieldwork, I developed close relationships with 15-20 people. All of them were either African-American or Latino men, mostly in their 40s, with long histories of confinement in juvenile facilities, jails, prisons, and federal penitentiaries. Their most frequent convictions were for drug-related crimes.

For three years I shadowed these men while they looked for jobs, applied for social services, hunted for affordable housing, battled their addictions, became homeless, slept in their cars, tried to obtain a driver’s license, lost their jobs, were rearrested, and released again.

During those months I gave them rides to the welfare office, waited in line with them at the DMV, picked them (and sometimes their partners) up from jail, sat next to them while they were panhandling in the parking lots of local supermarkets, gave them money when they were penniless and bought them groceries when their fridges were empty.

Many of the individuals released from incarceration are not fortunate enough to be picked up at the prison gates by some friend or relative. So when they are discharged—often in the middle of the night—at the closest bus station, with a bag of clothes and a few dollars of “gate money” as their only possessions, they’re on their own.

derelict building

West Oakland, CA. Photo by De Giorgi

Back on the street, sheltered in some halfway house when not homeless, they must struggle to survive, either in the secondary labor market as low-wage, part-time, disposable workers, or more often in the underground economy as chronically unemployed hustlers, recyclers, and panhandlers.

A large number of them face this lonely struggle for daily subsistence at the same time as they cope with severe psychological traumas, long-term addictions, and of course the looming threat of reincarceration if they violate any condition of their parole.

The initial goal of my research was to study prisoner reentry. I expected to return from my fieldwork documenting an extensive network of (post) carceral control, ongoing surveillance, aggressive policing, unrealistic parole and probation conditions, and that these intrusive penal technologies would emerge as the main obstacles to the successful reintegration of former prisoners.

Such a network has been well-described in recent criminological literature, notably by Alice Goffman in “On the Run: Fugitive Life in an American City,” and by Victor Rios in “Punished: Policing the Lives of Black and Latino Boys.” These books, and others, document the struggles faced by hyper-criminalized populations as they attempt to disentangle themselves from the tenacious grip of the state’s penal powers.

Instead, during my three years in the field I ended up documenting widespread public neglect, institutional indifference, and programmatic abandonment of these marginalized populations by both the social and penal arms of the state.

Darryl, one of the men I interviewed during my research, offered a powerful assessment of the widespread economic abandonment people face when coming out of prison:

One thing that we face as being African-Americans and living in an inner-city neighborhood is coming back to this neighborhood being rehabilitated, changing our life and doing stuff different, and at the same time have to deal with the same type of economic issues that we dealt with before we left […]. We have no opportunity where we lay our heads. […]. So this is one of the challenges that we face: we come back to nothing. We left from nothing and we’re back to it.

Darryl’s case was not isolated.

Besides lacking access to any employment opportunities, most people were unable to receive any form of welfare assistance—either because none was available or because they were “ineligible” as a consequence of the many welfare bans attached to their convictions. A lifetime ban on food stamps eligibility for felony drug offenders was introduced as part of the 1996 welfare reform.

Since 2015 the ban on food stamps and some other benefits has been lifted in California. Nonetheless, many people with criminal records don’t apply, often because they are simply unaware of their entitlement to these limited benefits, and in some cases because they have pending issues with the criminal justice system (such as unpaid child support) that make them wary of providing identification to any public official.

West Oakland

West Oakland, CA. Photo by De Giorgi

As for subsidized housing, at the time of the study the Housing Authority of the County of Alameda was not accepting applications for Section 8. The only way to get into the wait list for public housing was through a lottery system that has been closed since 2015. In any case, applicants can still be discretionally screened out due to prior criminal convictions, particularly if drug related.

Of course, besides housing, the most urgent need people face upon release is access to cash for the basic necessities of life; but the only cash allowance available to single men is General Assistance: a county-level emergency program that offers a maximum of 336 dollars per month, for a maximum of 3 months per year.

However, it would be misleading to even consider this as welfare assistance, since GA is considered a loan, and its prospective recipients must sign a reimbursement agreement as a condition of eligibility.

This is not to suggest, of course, that the incapacitating and disempowering effects of mass incarceration were absent from the experiences of the people I followed, but rather that those effects were magnified by the state’s retraction from (as much as presence in) the lives of returning prisoners.

Indeed, I observed the emergence in the postindustrial ghetto of a low-intensity model of urban containment of surplus populations largely devolved to what Jennifer Wolch has defined as the “shadow state”: a barely coordinated network of actors including nonprofit agencies, faith-based organizations, rehabilitation centers, transitional housing programs, etc.

These private or semi-private entities are charged with the low-cost management not only of former prisoners, but also of the variously disenfranchised populations inhabiting the urban margins—mentally ill individuals, homeless people, drug addicts, chronically unemployed men and women, etc.

They operate under a neoliberal model of social governance, in which market-friendly solutions are systematically devised as the only response to a broad range of structural issues faced by former prisoners and other marginalized populations. Thus, so called reentry services usually offer plenty of resume-preparation sessions, job interview workshops, anger management classes, computer literacy courses, rehab and group counseling programs—but much less in terms of affordable housing, free health care, accessible education, or a basic income.

This model of service provision is perfectly consistent with the neoliberal ideology of free choice, individual responsibility, and personal change that is inculcated into criminalized populations at every step of their journey through the US carceral state, from arrest to release.

In other words, whether they sleep in a bed or in a car, have a job or push a cart, have access to medications or go untreated, their reentry process is considered successful as long as they don’t commit any crimes.

A good case in point here is Ray, a 49-year-old African American who was released from prison in 2010, after serving 11 years for a violent crime.

While on parole, Ray kept struggling with alcohol dependence and used crystal meth and other drugs on a regular basis. Since he was homeless, for almost one year he slept with his girlfriend in a car that was parked in the rear of the fast food restaurant where Ray worked during the day.

Throughout my time in the field, Ray’s addictions were essentially ignored by his parole officer as long as Ray maintained a crime-free lifestyle. As for his homeless status, the officer reassured Ray that living in the car was OK, as long as he notified the parole officer whenever he decided to move the car to some other location (something Ray had to do frequently in order to avoid parking tickets).

It should therefore not be surprising that—despite the dreadful conditions of neglect and abuse endemic to the US prison system—penal institutions now represent one of the few remaining sources of public relief to the poor in the postindustrial ghetto. After all, even as living conditions in prisons keep spiraling down due to chronic overcrowding, ongoing state violence, and punitive deprivations, prisoners must nonetheless be granted access to food, shelter, and sporadic health care.

Formerly incarcerated people are aware of this, and it was not uncommon for me to hear the people I followed say that their material standards of living had deteriorated since their return to “freedom.”

Alessandro De Giorgi

Alessandro De Giorgi

In light of this, the recent mainstream campaigns for penal reform, some of which are inspired by budget concerns rather than by any public reckoning with the social suffering imposed upon criminalized populations, signal the intention of the nation’s power elites to defund even prisons, since these have become the residual providers of (carceral) welfare services to America’s racialized poor.

As long as living conditions at the bottom of the US racial and class hierarchy will be characterized by widespread economic destitution, institutional abandonment, and public neglect, “prisoner reentry” will be little more than a self-absolutory figure of speech, and formerly incarcerated people will keep coming back to nothing.

Alessandro De Giorgi, Ph.D., is Associate Professor in the Department of Justice Studies, San Jose State University. He is the author of “Rethinking the Political Economy of Punishment: Perspectives on Post-Fordism and Penal Politics” (Ashgate, 2006). An overview of the findings from this research can be found in the article “Back to Nothing: Prisoner Reentry and Neoliberal Neglect” published in Social Justice 44(1): 83–120. For some ethnographic snapshots from the field, see the blog series “Reentry to Nothing: Urban Survival After Mass Incarceration,” published online in the Social Justice blog. He welcomes comments from readers.


Jail Populations Keep Falling, Down 11.2% in 8 Years

The percentage of U.S. residents in jail dropped 3.4 percent from midyear 2012 to midyear 2016, says U.S. Bureau of Justice Statistics. County and city jails held 740,700 inmates at midyear 2016, far below the peak of 785,500 in 2008.

The percentage of U.S. residents in jail dropped 3.4 percent from midyear 2012 to midyear 2016, the U.S. Bureau of Justice Statistics reported  on Thursday. The jail incarceration rate fell from 237 inmates per 100,000 residents at midyear 2012 to 229 inmates per 100,000 U.S. residents at midyear 2016. The incarceration rate fell 11.2 percent from midyear 2008, when there were 258 inmates per 100,000 U.S. residents, to midyear 2016.

County and city jails held 740,700 inmates at midyear 2016. This was below the peak of 785,500 inmates in 2008, the year with the most jail inmates since 1982, when the agency began its annual jail survey. In 2016, jails reported 10.6 million admissions, continuing a steady decline since 2008, when there were 13.6 million. On average, those admitted to jail in 2016 stayed 25 days. At the end of 2016, 65 percent of those in jail were not convicted of an offense but were awaiting court action on a current charge. The remaining 35 percent were sentenced offenders or convicted offenders awaiting sentencing. Nearly 7 in 10 inmates were held in jail on felony charges, while 1 in 4 were held for misdemeanor offenses.

The rate at which people were held in local jails varied widely by racial and ethnic groups. At year-end 2016, non-Hispanic blacks (599 per 100,000 black U.S. residents) had the highest jail incarceration rate, followed by American Indian or Alaska Natives (359 per 100,000 American Indian or Alaska Natives residents). Hispanics (185 per 100,000 Hispanic residents) and non-Hispanic whites (171 per 100,000 white residents) were incarcerated in jails at a similar rate at year-end 2016. Blacks were incarcerated in jail at a rate 3.5 times that of whites at year-end 2016. This was down from 5.6 times the rate in 2000.


Justice Success Story: How Illinois Cut Its Prison Population

The sentencing overhaul championed by Gov. Bruce Rauner has already cut inmate numbers by 7,000. But reforms at the county level, influencing who goes to prison in the first place, have been a critical ingredient in the state’s success—and could be a model for jurisdictions elsewhere.

As states grapple with persistently high incarceration numbers, with more than two million people still in prisons and jails nationwide, the main focus has been on the back end of the justice system: reducing the time inmates stay behind bars.

Some reformers are urging a similar focus on the front end: incarcerating fewer people in the first place.

One state that is trying to do both, with some success, is Illinois.

Gov. Bruce Rauner has set an ambitious goal of cutting the prison rolls 25 percent by 2025. Illinois’ incarcerated population jumped from fewer than 10,000 inmates three decades ago to more than 48,000 in 2015—the nation’s eighth largest state inmate total. Providing cells, food, medical care and other services costs taxpayers $1.3 billion annually.

Under Rauner’s policies, the state has already cut that number by almost 7,000.

If prison is the caboose of the criminal justice train for offenders, the local criminal justice system is the engine, the place where decisions are made on who goes to prison.

A Commission on Criminal Justice and Sentencing Reform appointed by Rauner urged that local criminal justice officials focus on collaborative polices that would better control state incarceration numbers.

One of the first Criminal Justice Coordinating Councils (CJCC) was started in central Illinois’ McLean County in 2011 to address chronic overcrowding at the county jail.

At the time, McLean ranked highest among the state’s 20 largest counties in its rate of sending drug defendants to state prison, with a total of 92.1 per 100,000 residents, according to Malcolm C. Young, former Executive Director of the John Howard Association of Illinois, who studied variations in crime and arrest rates and commitments to state prisons among Illinois counties when he directed a program on prison reentry strategies at the Bluhm Legal Clinic of Northwestern University.

The McLean coordinating council, comprising elected and appointed policy makers, community members, attorneys, and law enforcement officials, met around the same table for the first time to examine the strengths and shortcomings of the local system.

“The CJCC erased the boundaries between the departments as we all worked together for the overall criminal justice system,” former County Sheriff Mike Emery, who helped initiate new policies to prune the jail population, said in a recent interview. Emery did not seek re-election in 2014 and now is law enforcement coordinator for the U.S. Attorney’s office in Springfield, Illinois.

Emery started the practice of letting judges and other decision makers know when his jail was nearing capacity, putting more emphasis on the possible release of low-level offenders at bond hearings. The decision of who would be released remained with judges, but the sheriff’s alert added jail population to the court’s list of considerations.

Defendants’ participation in a pre-trial release program allowed them to build a record of conduct for use later in their cases, he said.

The pre-trial release reports “gave judges more options than incarceration,” when it came to sentencing, he added.

Before the reform measures, inmates who were unable to pay as little as $100 to be released on bail sat for months while their cases moved slowly through the court system.

Mike Emery

Former McLean County Sheriff Mike Emery, who helped establish the Criminal Justice Coordinating Council. Photo by Lori Ann Cook-Neisler/The Pantagraph

In one of his first alerts to the chief judge, Emery pointed out that ten inmates were in jail on ordinance violations— the lowest form of criminal conduct. Now defendants on such infractions and similar non-violent offenses require only their agreement to appear for future court dates to avoid a jail stay, a major change in previous policy.

Data compiled by the McLean County justice council has since documented major changes in the jail population that reflect changes in both the number of inmates and the composition of the jail’s population.

By 2015, as jail usage began to tip significantly towards serious felony defendants, the total bed days for low-level felonies and misdemeanors—a measurement of overnight stays—were down an average of about 30 percent compared with 2007.

The county’s crime rate was also decreasing during this period, and police agencies have reported fewer arrests this year. The county’s total of 1,462 felony cases filed in 2016 was slightly below the previous year but generally were up since 2011, when about 1,100 felonies were charged.

The shift in McLean County to using the county jail mostly for holding defendants charged with the most severe offenses is a likely contributor to the lower numbers sent to state prison, David Olson, co-director of the Center for Criminal Justice Research, Policy and Practice at Loyola University in Chicago,who served on Rauner’s commission, said in an interview.

“We know from research that if people are not detained pre-trial, their chances of going to prison are less,” Olson said.

The ability to remain out of jail while a case is pending allows people to keep their jobs, take care of their families and, in some cases, begin efforts to address mental health and substance issues that may have contributed to their offenses. Defendants also have greater opportunity to meet with their lawyers and assist with their defense when they are not sitting in jail.

Illinois Adult Redeploy, a state program that grants funds to community-based county-level services, provides financial incentives for counties to divert people from prison by keeping them in the community. It also played a part in reducing the number of defendants McLean County sends to state prisons each year. The state program returns money to communities to invest in local efforts in exchange for reducing the number of people sent to prison.

There also has been a policy shift towards probation as the preferred disposition in non-violent criminal cases. The move to provide defendants with several chances to succeed before sending them to prison has the support of all levels of the local justice system, including the judiciary, whose representatives serve on the council.

Cassy Taylor, director of McLean County Court Services and a member of the council, said in an interview the collaboration between local and state agencies “creates data-driven decision making, so we are making smart decisions with the resources we have.”

The result, added said Taylor, is an agreement on what she terms “the philosophy of community corrections.”

The preliminary results of these changes have been promising, according to data compiled recently by The Pantagraph from local circuit court records. Between 2011 and 2016, there was a steady decrease in the percentage of convicted defendants from McLean County sentenced to state prison. In 2011, 42 percent went to prison and 57 percent were put on probation. By 2016, 29 percent of convicted felons were sent to prison and 70 percent went on probation.

In all, state prison admissions from the country dropped from 385 in 2011 to 293 in 2016, court data showed.

Loyola’s Olson has been studying the impact of local criminal justice councils on justice systems in five Illinois communities, including McLean County.

The reduction in the number of McLean defendants heading to prison is indicative of what collaboration can accomplish, said Olson. “You’ve got this drop in admissions to prisons because in part they’re using prison less as a sanction,” he said.

prison population

Redeploy Illinois helped Kenneth Williams get back on his feet in 2013 following legal problems. The program offers financial incentives to counties in return for keeping offenders in community-based programs instead of prison. Photo by David Proeber/The Pantagraph

Almost seven years after it started, the McLean County council is still going strong. At its mid-January meeting in the local government center, members reviewed a report on the numbers of mentally ill people booked into the jail.

The broad base of knowledge developed by the council since its inception on the inner workings of the criminal justice system supports robust discussion on what the numbers mean—something that was not possible before 2011.

Illinois officials hope that four other counties that have created local criminal justice counties with the help of the state will have results similar to McLean County’s.

The local councils are just one ingredient in Illinois’ effort to cut its prison population.

Another is a sentencing reform law that that went into effect Jan. 1. Several provisions allow defendants who violate conditions of probation to be jailed locally instead of going to state prison. Another section provides that cases of minor offenders who would normally spend about nine months in state prison remain in counties instead, under probation supervision.

The law also allows state prison officials to give “supplemental sentencing credits” that offer an expanded group of inmates reduced prison stays for taking part in rehabilitation programs behind bars.

Finally, the law repealed mandatory prison terms for selected offenses, many of them drug crimes.

James Austin, a consultant based in Washington, D.C. and California who has studied the Illinois correctional system, estimates that the law’s provisions will reduce the state prison rolls by between 5,000 and 7,000, depending on how it is implemented across the state.

Overall, Austin says, the prison total could drop to 35,400 by 2024, a 27 percent reduction under Rauner’s governorship.

The new Illinois law was termed “unique” by Lenore Anderson, president of the national Alliance for Safety and Justice, which advocates for survivors of crime, because it combines state-level and local reforms and adds new aid for crime victims.

“This is a model that other states should take a look at,” she said.

The Illinois reforms also got national recognition when the state was one of the first three chosen to take part in an ongoing National Criminal Justice Reform Project sponsored by the National Criminal Justice Association (NCJA) and the National Governors Association (NGA) to promote system-wide criminal justice reform that requires on evidence-based policies.

“Illinois’ work provides a good example of how states can better support and partner with local entities to address crime and strengthen public safety,” says NCJA’s Tammy Woodhams.

Much criminal justice reform in recent years has been focused exclusively on governors and state legislatures, who have the power to set maximum prison terms and to have much control over the amount of time prisoners end up spending behind bars.

Young, who studied Illinois counties’ justice practices, said that “all criminal justice is local,” adding that justice policies are “highly individualized among localities,” and that “extensive variations in government responses demonstrate the significant part local discretion and preference play in determining how criminal justice resources, including prison incarceration, are allocated.”

Eric Cadora, of the New York City-based Justice Mapping organization, originated the term “justice reinvestment” that is now used as shorthand for cutting prison populations and using the money saved for providing services to offenders.

Cadora welcomes state-level reforms but says that local criminal justice systems like those in McLean County also should be a key source of changes.

“Local jurisdictions are in a unique position to share the risk for … substantial reform efforts because they are more directly accountable for both the potential costs and benefits associated with the impact of such reforms on their constituents,” he said.

This story is jointly published as a partnership between The Pantagraph and The Crime Report. Edith Brady-Lunny covers crime and justice affairs for The Pantagraph in Bloomington, Il., and is a former John Jay Justice Reporting Fellow. Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. They welcome comments from readers.


U.S. Imprisonment Rate Down 11% Since 2008 Peak

Thirty-six states have reduced imprisonment rates since 2008, including declines of 15 percent or more in 20 states from diverse regions, says the Pew Charitable Trusts.

After peaking in 2008, the U.S. imprisonment rate fell 11 percent over eight years, reaching its lowest level since 1997, write Adam Gelb and Jacob Denney of the Pew Charitable Trusts Public Safety Performance Project. The decline from 2015 to 16 was 2 percent, mostly because of a drop in federal prisoners. The rate at which black adults are imprisoned declined 29 percent over the past decade. The ongoing decrease in imprisonment has occurred alongside long-term reductions in crime, the Pew writers say. Since 2008, the combined national violent and property crime rate dropped 23 percent.

On prisons, 36 states have reduced imprisonment rates since 2008, including declines of 15 percent or more in 20 states from diverse regions, such as Alaska, Mississippi, South Carolina, and Connecticut. Almost every state recorded a crime decrease with no apparent correlation to imprisonment. Across the 45 states with crime drops from 2008-16, imprisonment rate changes ranged from a 35 percent decrease to a 14 percent increase. The violent crime rate increased nationally in 2015 and 2016, but many cities are reporting reductions for 2017. Both violent and total crime rates remain near record lows. National, state, and local crime rates change for what Gelb and Denny call “complex and poorly understood reasons.” Overall, rates of reported violent and property crime have declined by more than half since 1991 peaks, falling to levels not seen since the late 1960s. Starting with Texas in 2007, more than 30 states have changed sentencing and corrections practices, aiming at improving public safety and controlling costs.


Doing ‘Hard Time’ in the Nation’s Jails

A Kansas professor took his political science students on visits to a state correctional facility and a local county jail, and discovered that for all the criticism about American prisons, jail inmates suffer even harsher conditions—aggravated by the lack of oversight and transparency.

Before I had thought much about the distinction between jails and prisons, a local prosecutor suggested that I take my political science students to El Dorado Correctional Facility, a maximum-security state prison located about 45 minutes northeast of Wichita.

We applied to the Kansas Department of Corrections and toured the facility in April 2016.

I initially thought that the experience of going behind the concertina wire might help students understand the severity of conditions in American prisons. Instead, we were more impressed by the truth of something we had been told at the local county jail.

During three separate visits to Cowley County Jail in November 2014, October 2015, and November 2016, we were told that jail time is “hard time” in comparison to incarceration in a state prison.

It hardly seemed possible.

But county jails have less bureaucratic oversight, smaller numbers of offenders and closer supervision of them, fewer programs, and less connection to the outside through contact visitations.

Jails acclimate inmates to incarceration, which explains the need for some disciplinary harshness; however, there is little incentive for short-timers to comply with the rules. (The last point is made by the Sheriff’s assistant in New Orleans. I spoke to him about the jail in September, 2016.)

An examination of prison and jail conditions has become even more imperative in recent days in Kansas. Since we visited El Dorado, its staff turnover rate has been the highest of all facilities within the state’s correctional system. According to reporting by the Topeka Capital-Journal, El Dorado’s staff turnover rate from summer 2016 to summer 2017 is an astonishing 46 percent.

The prison had several inmate disturbances in May-June 2017, resulting in a prolonged lockdown; the facility is double-bunked, and some wings are over capacity; the staff has been working 12-hour shifts since July under a declared staffing emergency; and its warden has been transferred.

El Dorado prison

El Dorado prison. Photo courtesy Kansas Dept of Corrections

Our visit to El Dorado uncovered some of the causes of this summer’s disturbances. Our jail visits also revealed subtle problems with the incarceration of those awaiting trial or serving short sentences. It is crucial for the public to be familiar with these problems, and useful to pinpoint some of the ways in which even modern, well-run jails make incarceration feel like “hard time.”

Eight Points of Comparison

1. Architecture

El Dorado

El Dorado Correction Facility, Kansas. Photo by Chris Barker

The first appearance of El Dorado is daunting. Tower 1, located in the visitor parking lot, provides a commanding view of vehicular traffic. In the interior yard, tumbleweed-like loops of wire are piled up higher than one’s head.

This mile-long “Israeli” fence was built by guards working alongside inmates after a 2007 prison break, when two inmates escaped with the help of an ex-officer. Five pounds of pressure on the wire sets off an alarm, and a few more pounds of pressure detaches the wire, which wraps around any object—say, a hand or foot―making contact with it.

Cowley County Jail. Courtesy Cowley County

Opened in 2008, Cowley County’s jail is an expensive new-generation jail that boasts increased interaction between inmates and staff. (On one visit, we spent several minutes watching as a guard deliberately engaged in conversation with several offenders, individually and in small groups, in one of the pods.) The jail houses between 80-100 inmates, with a capacity of 220, in seven pods. The population varies, depending in part on whether offenders from other counties are housed.

Most astonishing to us is that the jail does not have an outdoor yard. During exercise time, which is one hour per week, inmates use an empty pod, equipped with a basketball hoop raised two feet above standard to discourage dunking and hard fouls.

There is no exercise equipment. The pod has a garage door-type wall above the hoop that can be raised to let in indirect light and some outside air. But it is hardly enough air or light. To be fair, it is even more claustrophobic inside the panoptical guard tower, a one-room glassed-in control room that serves as the central nervous system of the different pods.

In this respect, El Dorado is completely different. The prison has an indoor gym with weights and a basketball court (although the ball is not fully inflated); ironically, inmates occupied the gym during the summer’s uprising. We were told on our visit that offenders have been allowed to play softball and soccer on the “back forty” since 2001, but I was more recently told that housing reconfigurations have ended these usages.

2. Housing

El Dorado’s medium-security U-dorm houses 116 model inmates in an open-concept room divided into cubicles rather than cells. Offenders in U-dorm have jobs and no disciplinary reports within the prior year. (Minimum security offenders awaiting transfer are also temporarily housed here.) When offenders are accepted into U-dorm, they begin in four-man cubicle areas and graduate to two-man bunking areas.

U-dorm is air-conditioned (with very loud blowers) and heated, and offenders have access to extended day room hours and the yard, plus perks such as microwaves. The cell block that we visit offers a sharp contrast: traditional cells, double-celled, which are 81 square feet, hot (see below), and cramped.

The jail offers no housing options. Everyone is housed in cells on the far end of the pods from the control room.

My students are divided about housing. Some strongly prefer the privacy and relative protection of the cells, where one can lay in all day if they want. Other students far prefer the openness of U-dorm.

3. Surveillance

Inside the prison, there are over 600 cameras. In conjunction with the fence, the ability to watch offenders means that direct control needs only to be asserted at the entrance doors. Our group passes through the metal detector, and we are given temporary stamps on our wrists that glow under blacklight. We are then allowed into the prison.

The lack of direct supervision produces a strangely free atmosphere, quite unlike the panoptical prison devised by Jeremy Bentham and influentially described by Michel Foucault in his famous book, Discipline and Punish.

As C. Fred Alford, a critic of Foucault, concluded from his study of Lorton Penitentiary, a federal facility that closed in 2001, “When you control the entrances and exits, you do not have to look. It is that terribly simple…”

Inside El Dorado, only one guard watched approximately 200 inmates in two connected pods. Offenders are permitted to move freely between the two pods, but are not permitted inside another offender’s cell.

Order, we were told during our visit, is maintained by controlling small deviations in behavior. Incidents of major violence are rare in Kansas’s correctional facilities, and offenders of different races play basketball and talk together in the yard unless a fight occurs.

Officers in the prison described the methods of soft power at their disposal: Slowing down the line during what they call the “running of the bulls” (running to meals through the yard in the rain), imposing water restrictions in cells (“a flush every four hours”), and singling out inmates for the way their shoelaces are tied and for the fit of their jeans.

At the jail, there are 74 stationary cameras, and staff members wear body cameras. Since offenders are confined to the common room and cells in their pods (except for the porters), it feels as if everything can be seen from the control room in the middle of the pods.

As we watched, a jail inmate who leans against a communal table in a pod’s common area is told to wipe it down. He does not, but his convoluted explanation distracts and amuses everyone.

Around the perimeter of each pod in the jail is a red line that the inmates are not supposed to cross. Two of the young men manically powerwalk the line. I don’t time their circuit, but it can’t allow more than about 50 paces. The jail feels subterranean and enclosed—certainly no fault of its administrators, but an avoidable feature of its architecture and layout.

4. Programs

Programs at the county jail—GED equivalency, religious services, alcoholics and narcotics anonymous, a work release program with its own housing area—are very minimal.

At El Dorado, there are several facilities to support inmates. A large (27,000 square foot), $1 million Spiritual Life Center provides support for practitioners of the 27 religions that Kansas recognizes. There are outdoor religious worship areas for everyone from Asatru practitioners (“white supremacists”), and Native American Church members to Wiccans.

There is vocational training in masonry, electricity, and construction, and sentence reductions for those who complete their training. Inmates can send monitored emails to people on the outside, and they have limited access to the internet for job sites.

Offenders do not have to work, as they do at the federal level, but they can work, which beats county, which had a limited number of porter jobs (paid at $5/hour, with extra food and forgiven court costs) to keep offenders occupied. About 60 percent of the inmates work at El Dorado. Pay ranges from 60 cents a day for new arrivals to $1.05 cents a day.

Some food services inmates at El Dorado make 25 cents an hour, and a very few hold minimum wage jobs. Extra money (up to $400/month) can be sent back to family. Money also provides access to perks. For example, it cost offenders $200 to buy a 13” television set; the high price is explained by the need to make everything inmate-proof.

We visited a small room where offenders work for a balloon-making company for minimum wage. They were listening to the radio and working together quietly.

These minimum wage earners subsidize their own detention by “paying rent”—40 percent of their gross income, which includes 25 percent for room and board.

With respect to mental health, there are problems of diagnosis and treatment in both the jail and the prison. The long process of classifying offenders at RDU (see below) allows mental health testing to be done. But we are told that “a lot” of El Dorado inmates are on anti-psychotics.

Those who seem “BSC” (bat-shit crazy) are left with “Fred” for company. (Fred is the fluorescent light in RDU’s segregation cell.) State offenders are also provided with a variety of classes: group substance abuse, and mental health classes on substance abuse.

At the jail, the medical officer estimates that 15 percent of inmates suffer from some form of mental illness.

More troubling, we are told by the jail administrator that no one is dispensed any drug treatment for drug addiction except in cases where death can result from withdrawal—which, they say, is only true for delirium tremens. Offenders already on methadone are able to maintain their prescription, but otherwise addicts are not given direct treatment.

Walnut River

Walnut River, just outside the El Dorado facility. Photo by Chris Barker

This may explain the agitation and haggardness we see in the jail’s pods. At the jail, those who act out are left in holding’s poured concrete segregation cell to sleep off their illness, in their own vomit, if need be, for as long as a week.

In the segregation cell in holding, they are issued a mattress between the hours of 11 pm and 8 am, if their conduct permits it. (In holding, no one except inmates serving “quick dips” automatically gets a mattress.) As we watched, several young men in holding were sleeping on the concrete floor under their blankets.

5. Classification

All adult male felony offenders in Kansas are processed at El Dorado’s Reception and Diagnostic Unit. This is a long, thorough process that results in assignments to specific housing.

Individualization is needed for incarceration to be proportional and not overly punitive, and proper classification is important to match inmates with the proper conditions of incarceration. Having said this, there is an argument to be made for treating all offenders the same.

Offenders, we are told, treat those convicted of child molestation and crimes against women harshly. But one of our guides at El Dorado says that their job is to provide a safe and secure environment rather than a punitive environment. The head of El Dorado’s U-dorm says that the answer will vary by staff member, but he personally does not treat inmates more severely because of their crime.

6. Segregation  

El Dorado’s special management units include offenders in disciplinary segregation, long-term administrative segregation (e.g., for those such as BTK), and Kansas’s death row inmates. Special management has its own yard, which offenders do not use. We were allowed to look into it but not enter. Some special management offenders have spent years in solitary confinement on 23 hour a day lockdown. (One man, we were told, was recently released after serving 30 years of his 50-year sentence in solitary confinement.)

Special management offenders get one hour of yard a day, five days a week, and their exercise area is a concrete enclosure, partially open to the sky, which contains a metal frame for dips.

Special management inmates are permitted a ten-minute shower every other day, and are subject to strip search (during which they spread their cheeks and squat) every time they leave and return to their cells. Walking in the general population yard, we encountered one of the special management inmates being transported by two special security officers. He had a belly chain around his waist, and his wrists were cuffed.

“See you in 2052,” he called out to the young women in our group.

He is eligible for release in another 36 years.

Jail, of course, has the advantage in that it does not employ long-term administrative segregation. One pod is typically set aside for sex offenders, who cannot safely be housed with other offenders; two for women; and one for Sedgwick County’s overflow offenders. The other three pods are for all other offenders or pre-trial detainees.

7. Crowding and Temperature

El Dorado has an overcrowding problem. When we visited in 2016, they had 1,573 inmates. (They currently house over 1,900.) Transferring inmates to county jails costs the state $45-$50 a day. Understaffing is blamed for the June, 2017 disturbance at El Dorado, but further stress has been created by high volumes of transfers, especially transfers from Lansing, where a new facility is to be built, and from Larned Correctional Mental Health Facility, which is being reclassified as a medium security facility.

Likely as a result of these difficulties, James Heimgartner, El Dorado’s warden since 2011, left his position this summer.

There is no air conditioning in some of the cell blocks, and, despite the fact that we are told of statutory requirements to keep temperatures within a certain range (about 68-78 degrees), one of our guides told us that he personally recorded highs of 116 degrees, and 90 degree temperatures at 6 am.

For what it’s worth, inmates can buy small fans for $40 for some relief.

Kansas Corrections’ current policy requires thermostats to be set “not higher than 68 degrees” during the winter and “not lower than 78 degrees” during the summer, “where tempered air is available.” At El Dorado, both of our guides did not apologize about the summer heat that they also work in. They said that the coolers cost $10,000 a day to run, and they aren’t turned on until a few consecutive days of temperatures in the 90s. In the summer of 2017, excessive heat was blamed for at least some of El Dorado’s inmate disturbances.

The jail, in contrast, is air-conditioned. The staff tries to keep the temperature between 70-72 degrees, depending on the season.

8. Visitation

Visitation conditions are strikingly different at the jail and prison.

Visitations at the jail are no-contact visits where offenders and visitors communicate by using a video terminal. At the prison, the options range from a large, open visitation room with contact visits (but not conjugal visits); non-contact visitation rooms for sex offenders and for those who have received disciplinary reports for possessing contraband in the facility; and, at the most restrictive end, a video unit with a phone for those in special management.

Thus, visitation conditions for the general population of the jail, including those held prior to conviction, approximate the visitation conditions of those in the most restrictive classifications in the prison.

Our guide estimated that 85 percent of El Dorado’s contraband comes through the visitation room (and the rest from staff), but no one disputed that contact visitations are crucial for the inmates’ well-being.

In contrast, we were told that some offenders in the county jail are held for a year and a half, which is a very long time to be held without contact visits. When NPR reported on the move towards video visitation made by some jails, they quoted a New Hampshire sheriff, who called the lack of contact visits a “difficult sanction” and “hard time.”

Better, Not Bitter

“Better, not bitter” is the unofficial motto of Kansas corrections. This motto offers a compelling standard by which to evaluate incarceration in jails and prisons.

County jails perform several different tasks: They hold suspected offenders for trial; prepare offenders for long-term incarceration in prison; provide space for convicted offenders to serve misdemeanor sentences, or for “quick dip” probation and parole violation sanctions, mostly through drug court; and prepare offenders to re-enter society.

These are very different tasks. Moreover, county jails have the same, limited resources to serve all of those ends. Limited resources make the physical experience of incarceration in jail feel harsh in spite of the good intentions of the staff we meet.

In particular, the limitations on visitation and the lack of a yard seem to fail the “better, not bitter” maxim.

The prison, in contrast, takes advantage of economies of scale: more resources, more equipment, more programs, and more bureaucratic protections of inmates. The result is an ironically more humane experience, albeit one where inmates settle into a routine under long-term custodial supervision.

Prison inmates have access to outdoor areas, greater freedom of movement, more and more varied jobs, and a degree of housing options. There are problems: overcrowding, understaffing, out-of-control temperatures, double-bunking/double-celling, and extended and frequent lockdowns.

But these problems are not specific to prisons.

At both institutions, the well-intentioned attempt to treat all offenders equally is also a source of harshness in punishment.

Thus, while it seems appropriate to treat each offender the same, no matter their crime, individualization requires that offenders in prisons and jails should be able to:

  • Choose to have contact visitations at anything below the highest classification levels;
  • Access a variety of physical environments, including an outdoor yard with sufficient space and equipment to work large muscle groups;
  • Choose between dormitory housing and cells wherever feasible;
  • Work if they choose to do so, both to develop individual responsibility and to defray some of the costs of incarceration. (El Dorado spends approximately $32,000 per year per inmate. Cowley County spends about $25-40 per inmate per day, depending on the year and population);
  • Expect facilities that are safe, properly staffed, not overcrowded, not overly hot or cold, and not too far from their homes; and to have exit rights to transfer to a more congenial facility if those conditions are not met.

As El Dorado’s website makes clear, “offenders are sentenced to incarceration as punishment, not for punishment.”

Chris Barker, Ph.D., is Assistant Professor of Political Science at Southwestern College in Winfield, Kansas. He welcomes comments from readers.