Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

After Prison, Coming Home Can be the Toughest Ordeal of All

Prison is often just a stop along the road for individuals who have been struggling with victimization all their lives, says Bruce Western, author of a new book exploring returning inmates’ experiences. That’s why the justice system should rethink its approach to who it punishes—and how—he argued during a talk in New York Thursday.

Prison is often just a stop along the road for individuals who have been struggling with victimization all their lives, says Harvard sociologist Bruce Western.

Western, author of the recently released Homeward: Life in the Year After Prison, said he was shocked by the findings of his own research showing the amount of violence many inmates had experienced long before they were incarcerated.

homeward bound“In a world that is so saturated with issues of moral complexity, our criminal justice winds up piling punishment upon people who are the most disadvantaged and have very serious histories of victimization,” Western said.

Western, the Daniel and Florence Guggenheim Professor of Criminal Justice Policy at Harvard University and a co-director of the Columbia Justice Lab, was speaking at a discussion of his book Thursday.

He was joined by Khalil Cumberbatch and Vivian Nixon, two former inmates who are among the leaders of the prison reform movement. Both said that the help available to them immediately after their release was crucial to their successful reentry to civilian society.

Vivian Nixon

Vivian Nixon

“I have a wonderful career that I love now, but it’s because I had that support when I got out,” said Nixon, executive director of the College and Community Fellowship.“And I attached that support to opportunity.”

She considers herself lucky to have had family support after serving a four-year sentence, but added it still took her 18 months to find work after being released.

Khalil Cumberbatch, associate vice president of policy at the Fortune Society, served a 6 ½ year sentence and took advantage of in-prison programs offered before release.

Bruce Western

Bruce Western

“People told me, ‘If you wait until the day you get out of prison to talk about your game plan, you’ve already lost,’” Cumberbatch said. “The real ‘game’ begins after you are released.”

According to Western, returning inmates faced systemic disadvantages that often imperiled their ability to lead productive lives. His research, conducted in the Greater Boston area, focused on men and women leaving state prisons in Massachusetts.

But he found that economic security was crucial to their ability to stay out of future trouble with the law, noting that many individuals were simply “leaving prison for poverty.”

He argued that the criminal justice system needed to be more conscious of the life experiences of offenders before and after their prison term. Although in the popular mind there was a clear line between victims and perpetrators of violence, many individuals experienced both roles.

“It always boggled my mind that the rest of the world didn’t know how poor people lived, and especially how poor black people lived,” said Nixon, who grew up in a housing project in Long Island.

Khalil Cumberbatch

Khalil Cumberbatch

“Violence was the norm, frailty was the norm, and constant discrimination was also the norm. Even though it was common to me to understand this was how we lived, not everyone grew up like that.”

Western, one of the nation’s foremost scholars on incarceration issues, said he had once thought statistics on incarceration, reentry and recidivism would speak for themselves in arguments for justice reform.

He said he wrote his new book to bring the human cost of incarceration closer to home.

Nixon agreed.

“The way we use mega-data in our society dehumanizes us all,” she said. “We can all fit into some category of mega-data, whether positive or negative, and that does not tell the entire story of who we are.”

Marianne Dodson is a TCR news intern. Readers’ comments are welcome.

from https://thecrimereport.org

Why America’s Prisons Need ‘Systemic Change’

On the 10th anniversary of the Second Chance Act, veteran corrections administrator and researcher Stefan LoBuglio says attitudes towards prisoner reentry have undergone a “sea change” since the 1990s. But in an extended chat with TCR, he warns of a retrenchment in programming that threatens the overall functioning of the U.S. corrections system.

Last month marked the 10th anniversary of the federal Second Chance Act, which has provided aid for state and federal prisoner reentry programs. President Trump declared April “Second Chance Month” to bring attention to programs that “provide opportunities for people with criminal records to earn an honest second chance.”

To assess the state of prisoner reentry in 2018, The Crime Report spoke to Stefan LoBuglio, who recently completed a three-year stint as director of the National Reentry Resource Center at the Council of State Governments Justice Center. LoBuglio, a former corrections administrator in Massachusetts and Maryland, will speak in Kigali, Rwanda, next week at the Eighth International Conference on Human Rights and Prison Reform.

The Crime Report: Prisoner reentry became a public issue in the 1990s when then-Attorney General Janet Reno called attention to the fact that more than 600,000 prisoners are released back into society every year. What is your recollection of that era?

Stefan LoBuglio

Stefan LoBuglio

Stefan LoBuglio: There were earlier milestones in this field. One was the early-1970s publication of the review by sociologist Robert Martinson, declaring that “nothing works” in inmate rehabilitation. In the 1970s, we saw suspicion of the corrections system amid the large growth of in-prison population that continued roughly until the year 2000. There has been enormous energy, research and support of the prisoner reentry field, starting at least with Jeremy Travis at the National Institute of Justice near the end of the Clinton administration, and continuing through the George W. Bush and Barack Obama administrations. When I began working in corrections in 1992, the job was usually defined by the mantra “care, custody and control.” When you asked a corrections administrator about recidivism, you’d be told, “That is not my responsibility.”

In the 25-plus years since then, there has been a sea change. When you go to meetings of corrections administrators now, there is talk about adding “community” to the mantra, and there are hundreds of programs under the Second Chance Act and other laws to improve prisoner reentry. It was once called “reintegration,” but the lexicon did change to “reentry” in the 1990s. One question people were asking is why inmates should have the opportunity to get things like college degrees when people in free society didn’t have that access? Reentry was framed not as a question of what inmates deserved but of necessity—they were going to be released and we had to prepare them.

 TCR: Another, different, anniversary related to the issue of prisoner reentry was marked this year: the “Willie Horton episode,” which many observers at the time believed was a factor in Massachusetts Gov. Michael Dukakis’ loss to Vice President George W. Bush in the 1988 presidential contest.

Editor’s Note: William Horton, then serving a life sentence for murder, failed to return from a weekend furlough from Massachusetts during Dukakis’ term, and later was convicted of a 1987 rape, robbery and assault in Maryland, where he remains in prison. He was used then, and occasionally even now, as a potent symbol for those arguing that corrections reforms can endanger public safety.

LoBuglio: Horton was a violent and horrible case that had wide repercussions for the field and led to the retrenchment of programs and facilities that allowed individuals to be released gradually back into the community. There was widespread support at the time for such opportunities for people who were soon to be released. Horton was in a furlough program, but there were also many “work-release” programs that were very popular.

Inmates could get jobs, reengage with their families, and seek the support of those community institutions of interest to them. Those programs had become part of the corrections infrastructure, but they disappeared overnight in 1988, and even 30 years later, they are still absent. For 11 years, I worked in the corrections department of Montgomery County, Maryland,, where we ran such programs, and demonstrated the ability to transition violent and non-violent offenders back into the community for those who were soon-to-be released. In corrections, we are not making the sentencing decisions, but rather dealing with the reality that most individuals will leave at some point after serving their court imposed sentence.

campaign button

A campaign button from Michael Dukakis’ doomed 1988 presidential campaign. Photo by palemon escobio via flickr

More recently, in following this area for the Council of State Governments Justice Center, I was struck by how few jurisdictions maintain these release-transition programs. Thirty years after the Horton case, with our better technology and communications, we should be rethinking how to incorporate work-release for the people who are coming back to the community.

 TCR: Were laws like the one that allowed Horton’s furlough common?

LoBuglio: Such programs were not unusual back then. What was so dramatic about the Horton case was that he was a convicted first-degree murderer. After it happened, there were wholesale cancellations of prison systems’ contracts with halfway houses, and those programs that remained were tightly restricted. The debate shouldn’t be focused on transitioning the most heinous criminals but rather whether the vast majority of people in the corrections system have the opportunity to be housed in places like work-release centers.

In my three years at the Council of State Governments, it was clear that programs in prison to prepare inmates for release are not yet robust. Our national conversation on reentry is focused on community corrections, probation and parole. We haven’t really talked much about re-instituting work-release programs in prison. Remember that well over 90 percent of state and federal prisoners are released at some point, and between nine and 12 million people cycle in and out of jails each year.

More people should have the opportunity to use community resources before their release, under strict supervision. Even programs that purport to provide pre-release service don’t. Years ago, I visited the Baltimore pre-release center that housed about 300 people, but only about 30 or 35 were going out on a regular basis for jobs.

TCR: We hear about prisoners who finish their terms just being loaded on a bus. Is that what really happens?

LoBuglio: It used to be predominantly true, and it still is too often true. They might be given just $40 in “gate money.” Much of the support for better reentry procedures in the early 2000s came from reports that people in solitary confinement literally went from being in shackles and chains to being released into the community. In a good corrections system, you want people to be properly classified, for example starting in medium security general population and being able to have their security classifications “stepped-down” to minimum, and to be placed in work-release programs as they neared their release date.

The retrenchment in pre-release centers and the use of halfway-house beds has had an effect of constipating the overall functioning of the corrections system, and having too many individuals “stuck” at medium classification. There should be opportunities for people in prison to behave well, and that if they play by the rules, they should get commensurate privileges. Behavioral change is most likely to happen when you have a clear set of rules to go by.

Years ago, economist Anne Morrison Piehl of Rutgers University interviewed inmates at the Montgomery County Pre-Release Center and found that most all of them could recite from memory what actions they needed to perform to even receive small benefits. Her paper for the conservative think tank Manhattan Institute called the “Powers of Small Rewards” is a reminder that good corrections involves setting up a clear and fair system of rewards and sanctions to encourage behavioral change. If you have the possibility of getting work-release status for a person serving, say, five to seven years, that is a powerful inducement.

Studies of causes of disturbances in prisons have put lack of programming and lack of fairness for inmates at the top of the list. We’re not running correctional institutions as safely as we could. Doing it well provides an element of safety for corrections officers as well as for inmates.

TCR: We’ve mentioned the Second Chance Act. Some people may not realize that it was proposed and signed by President George W. Bush and was pushed by conservatives such as the late Charles Colson.

Editor’s Note: The late Charles Colson, an aide to President Richard Nixon, served seven months in prison in the Watergate scandal and later founded the Prison Fellowship.

LoBuglio: Yes, the Second Chance Act was a bipartisan measure that was co-sponsored by Vice President Mike Pence when he was in Congress in 2008. The main sponsors were Republican Rep. Rob Portman, later director of the Office of Management and Budget and now a U.S. Senator, and Senator Patrick Leahy from Vermont. There was a remarkable bipartisan consensus for Second Chance, supported also by faith-based organizations.

The law was an acknowledgement that the federal government has a role in determining what works to reduce recidivism. There was a recognition that recidivism rates of people who had been in prisons and jails was too high. Also, states and localities didn’t have the ability to do the research and development. The Second Chance Act helped establish research in this area. The correction system consumes an enormous part of state and local budgets, and almost all of that goes to staffing, building and health care.

The federal system used to be the gold standard in corrections systems, and one part of that was setting the bar high. The National Institute of Corrections [in the Justice Department] plays a role in raising the professionalism in the field. In 2008, there was a recognition that states and localities didn’t have enough information, knowledge and resources to do the experiments to figure out what works in corrections. The legislations provided the funding mechanism for the federal government to seed prisoner reentry of different types across the country. More than 800 programs have been funded.

About $500 million has been spent under the law since 2008. To help create and spread new knowledge, the National Reentry Resource Center was created in the Council of State Governments Justice Center, which has run it since 2009. The spending under the law is a relatively small figure, but it is significant because corrections is an $88 billion annual enterprise – this part of it represents the R&D. Without it, there would be nothing. The law plays the role of a catalyst in reentry. There are about 5,000 total correctional institutions in this country including 3,000 county and municipal jails. Not many states have had a major commitment to rehabilitation. In some states there has been a tradition of good corrections systems. Many states have not been able to keep up.

The federal prison system used to be known as the gold standard in corrections. It’s quite startling to see now how denuded the system has become. That has been true in state after state – a wholesale retrenchment in programming. We now have the ability to rebuild the programming infrastructure based on sound evidence. We are much smarter in 2018, knowing much better what we should see in corrections.

The Council of State Governments Justice Center held a “50-state summit” on corrections last November, when Georgia Supreme Court Justice Michael Boggs talked about significant reforms that the state has taken through Justice Reinvestment but he recognized that almost all of them to date dealt with nonviolent offenders. He explained that the next chapter of this work will need to address violent offenders. In 2018 we should be talking about what we can be doing regarding interventions with violent offenders who will be released. That subject needs a dramatic review. We are risk-averse because of Willie Horton-type cases.

As corrections populations nationwide have declined, we need better research to develop a full panoply of correctional innovations, especially because a large proportion of inmates in some correctional facilities are higher-risk people. Those people present generally more complex and more challenging cases.

TCR: The overall recidivism rate is often summarized as two-thirds to three-fourths of former inmates being rearrested in the three years after they are freed. Do we know if that general picture has changed?

LoBuglio: Some states have been able to reduce their recidivism rates. One way it happens is through changes in sanctioning policies so that there are intermediate steps before someone on probation winds up in custody. We have demonstrated that we’re able to reduce recidivism first and foremost through administrative action (changing revocation policy), but also through behavioral change.

Possibly the best study was done by the Urban Institute of Allegheny County, Pa., which found that participation by one group of inmates in a reentry program reduced recidivism by 30 percent.

What concerns me is that the national evaluations have not been very helpful in providing us with good advice. The challenge is to determine whether there are programs with sufficient quality and substance to make a difference. It is very challenging to maintain high quality programs with sufficient dosage. Some discussions with inmates, for example, may devolve into rap sessions. There are many implementation challenges. It’s difficult to give a probationer or parolee sufficient content to make a difference. People have many demands on them, such as maintaining a family. It’s much easier to help them if they are in a correctional setting.

TCR: Some experts have suggested that we should start preparing inmates to leave prison on the day they enter custody. Is that a worthy goal, and does any place actually try to do it?

LoBuglio: I agree with the theory. Some people even say that reentry preparation should begin when someone is arrested. Ideally, there should be a risk-need assessment of someone as soon as they enter custody and a programmatic plan developed. The best implementation of this that I’ve seen was done by Michael Ashe when he was sheriff of Hampden County, Massachusetts.

There used to be a belief that you can’t start the rehabilitation of individuals until 10 or 15 years down the line. Others say you can’t do much if the person is going to be in jail for only a week. What is the ideal period? This used to be referred as the Goldilocks problem: Is the period to short or too long for rehabilitation, and what is the “just right” period? Well, the answer is “do something” in every case, and recognize that it will be necessarily different based on resources and time remaining.The answer is an individualized treatment plan that takes into consideration sentence length and victims. Some people might have 10 years remaining to serve, but need lots of education and substance abuse treatment. You might have only 50 slots in a program and have to choose between a prisoner who has 20 years to serve and one with six months.

TCR: Where would you say that the U.S. stands generally on prisoner reentry?

LoBuglio: There has been dramatic change in some corrections systems that are paying attention and are focused on change. There have been great gains in the reduction of jail populations, but that can mean more challenges dealing with the people who remain in custody, who are much more difficult to deal with. We shouldn’t be surprised if those people have high rates of failure.

I think we need to look at systemic changes rather than programmatic ones.

We need to change the conditions of confinement, for example, so that some people don’t need to stay in prison so long on the front end, and we can focus on the high-risk individuals who remain there. We need a new type of facility that will wrap in medical and mental health treatment, and we must improve the collaboration between other agencies. We need more businesses as stakeholders. More businesses are rethinking their policies and hiring ex-offenders. It’s new and different to have them at the table—an important part of the conversation on reentry.

We also have more formerly incarcerated people taking part in reentry programs, bringing a level of reality to them.

There are many social service providers involved in prisoner reentry, but the quality of services is very uneven. If there were a rating service like “Yelp” in the social service area, that would be very helpful. It would be good to strengthen the social service community with a smaller number of providers with better quality services.

 TCR: Have programs funded under the Second Chance Act been evaluated?

LoBuglio: The National Institute of Justice has published some, including one on recidivism last year, an October, an evaluation of seven programs.

TCR: What do you make of the Trump administration’s interest in prisoner reentry?

Ted Gest

Ted Gest

LoBuglio: They changed the name of the interagency council established during the Obama administration, to add the term “crime prevention.” It makes sense to have federal agencies working in concert on this issue. The important thing now is for Congress to reauthorize the Second Chance Act, which I’m hoping will happen with all of its bipartisan support.

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

from https://thecrimereport.org

Kushner Heads to Texas to Promote Prison Reform Bill

Presidential adviser and son-in-law Jared Kushner will tour Seagoville Federal Correctional Institution outside Dallas Friday to promote the First Step Act, bipartisan legislation modeled after successful reforms in Texas and other states to help ex-offenders reenter society.

White House adviser Jared Kushner, President Trump’s son-in-law, will travel to Texas on Friday with Sen. John Cornyn (R-TX), a chief sponsors of prison reform legislation aimed at reducing recidivism and rehabilitating low-risk offenders, reports the Houston Chronicle.

Kushner will tour Seagoville Federal Correctional Institution outside Dallas. Joined by federal Bureau of Prisons director Mark Inch, they will get briefings on the prison’s community reentry and residential drug treatment programs.

The trip is aimed at promoting of the First Step Act, bipartisan legislation modeled after successful reforms in Texas and other states to help ex-offenders reenter society. The legislation, which was approved this week by the House Judiciary Committee, mirrors previous corrections legislation sponsored by Cornyn that he said can reduce recidivism, save taxpayer dollars, and cut crime.

Prison reform has been a priority for Kushner, who has become the face of a White House-backed bill that is advancing despite internal GOP differences over sentencing reforms that are favored by Democrats but opposed by Trump. Cornyn, the No. 2 Republican in the Senate, is expected to be a key negotiator in moving the bill forward.

See also: Kushner Push on Reform Gets Resistance, and Key Conservative Tells Congress: Pass Sentencing Reform

 

from https://thecrimereport.org

Survivors of Solitary: Still Haunted by Memories

The time he spent in solitary confinement, trapped in a tiny prison cell with almost no human contact, is “going to be with me for the rest of my life,” says Rev. Matthew Burke. It’s a common refrain among those subjected to what many argue is a counterproductive form of punishment for already-incarcerated individuals—but their special needs are often overlooked in prisoner reentry services.

The last time Rev. Matthew Burke heard the dull thud of a solitary confinement cell door shutting behind him was over a decade ago.

But long after his release from an upstate New York prison after 23 years in captivity, he’s still haunted by the extended time he spent isolated from normal human contact 22 hours a day in a concrete cell as little as the size of an apartment bathroom.

“I can’t shake the memory,” says Burke, who sees a psychiatrist regularly. “It’s going to be with me for the rest of my life.”

In the midst of stepped-up nationwide efforts to improve services aimed at helping the formerly incarcerated lead productive and law-abiding lives after their release, the unique psychological and health problems facing those who have endured long-term stints in what is officially called “segregated housing” for incarcerated individuals are often overlooked.

Adjusting to normal life after extended periods of incarceration is difficult enough—but solitary confinement leaves those who have experienced it with a range of medical and psychological issues that are rarely addressed even in the most progressive approaches to post-prison counseling, experts admit.

“For vulnerable populations leaving prison, the system is already difficult to navigate,” says Rebecca Hochman, who works with the formerly incarcerated as manager of the New York City-based nonprofit Coordinated Behavioral Care.

“But for (those who experienced solitary), you really need a trauma-informed approach.”

With current systems of community supervision already under acute pressure, the special needs of solitary confinement survivors are often missed, admits Pamella Harris, a supervisory U.S. probation officer in the Southern District of New York.

“We need to do better at helping them navigate,” said Harris.

At a conference at John Jay College last week, where she shared the speakers’ platform with Rev. Burke and another solitary survivor, Rev. Hector Custodio, Harris turned to both of them and offered an emotional “apology” for the system’s failure to take their needs into account.

solitary confinement

Rev. Hector “Pastor Benny” Custodio was confined for 1,480 days to an isolation cell in New York’s Rikers Island facility. TCR Photo

“That’s the first time anyone apologized to me,” responded Custodio, whose four-year prison term included 1,480 days in the Central Punitive Segregation Unit—nicknamed the “Bing” by detainees—of the Rikers Island facility in New York City.

Rev. Custodio, once a leading member of the notorious Latin Kings gang, is now pursuing his doctoral dissertation (in mass incarceration) and is founder and chief executive officer of the Brooklyn, NY-based Never Forsaken Reentry Ministries, and senior pastor of Immanuel First Spanish United Methodist Church.

But, like Rev. Burke, his time in solitary left permanent scars.

‘I still find it difficult to hear a person say ‘I love you,’” Custodio, known also as “Pastor Benny,” told the conference, entitled “Rethinking Solitary Confinement: Where Do We Go From Here?” Friday.

“Our bodies are free but our minds are not.”

A day earlier, conference participants, including 24 journalists from around the country, heard medical experts describe the deep psychological damage associated with long-term periods in isolation.

“The harm starts immediately,” said Dr. Stuart Grassian, a former Harvard Medical School physician and researcher who was credited with having identified a syndrome that solitary triggers in many people, characterized by agitation, confusion, paranoia, and delusions.

Dr. Grassian said that solitary confinement can cause psychosis in people who did not have it before being isolated, and sometimes they do not recover. The most common long-term effect is an inability to withstand sensory stimulation—making it doubly hard to master the tasks of finding employment and housing, reconnecting with friends and family, and even pursuing normal activities like walking in a crowded street or taking public transit.

But the incarcerated are not the only victims of a system that has so far placed a higher priority on punishment than on rehabilitation.

“At least six corrections officers have been killed in the last six months,” said Susan Jones, who retired as warden of Colorado’s Supermax prison, which confines individuals deemed as high-security risks in single-person cells for 23 hours a day.

solitary confinement

Former Colorado Supermax warden Susan Jones believes solitary confinement is only one component of a system that is “deeply unstable.” TCR photo

“That’s indicative of a system that’s deeply unstable.”

She provided no source for the figure.

One source of the instability appears to be the specially charged climate of violence in prisons where segregated housing, “administrative segregation,” or Special Housing Units (SHUs) are used as a form of coercion and control by correctional officers who are often overworked, highly stressed and inadequately trained.

Adding to the tension, according to Ward, who said she was herself “beaten nearly half to death” over a decade ago by a prisoner, is the feeling of lack of control and uncertainty about policy—even among correctional administrators.

Research supported by the National Institute of Justice suggests that corrections officers suffer high levels of alcohol abuse and psychological trauma as a result of the climate of stress and threat they experience daily; and some as-yet-unpublished studies are exploring whether they experience a heightened risk of premature death even after retiring.

Even correctional officers who admit that solitary confinement can be overused say policymakers, state legislators and the general public have given them conflicting signals about how to handle the tensions boiling up in prisons that are often overcrowded.

solitary confinement

Elias Husamadeen, head of NYC’s correctional officers’ union, ran the Punitive Segregation Unit at Rikers for four years. TCR photo

“You’re not sending (offenders) to us for a hug,” said Elias Husamudeen, president of the 10,600-member Corrections Officers Benevolent Association of New York City. “You’re sending them to us to keep them away from you.”

Critics say the lack of transparency and oversight has given correction officers virtually arbitrary power to determine which internal rule “violations” will send an incarcerated individual into solitary confinement. The officers respond that such front-line decisions are made for the safety of the detainee or for the safety of either corrections officers or other inmates.

Husamadeen, who headed a Punitive Segregation Unit at Rikers for four years, said “99 percent” of those sent to isolation never committed further infractions after having endured the extreme disciplinary sanction of solitary.

“But tell us what we should do with the one percent,” he said, adding that efforts to “reform” the use of solitary or other correctional practices without addressing the conditions that brought traumatized or mentally troubled individuals into prison in the first place were hypocritical.

In fact, it is often left to the courts to force correctional institutions to curb the arbitrary manner in which solitary confinement is enforced.

In a landmark December, 2015 decision, Federal Judge Shira A. Scheindlin of the Southern District of Manhattan imposed a settlement on New York intended to “greatly reduce the frequency, duration and severity” of solitary confinement in the state. The ruling came in a class action suit brought by the New York Civil Liberties Union after receiving a complaint from an inmate who spent three years in solitary for keeping papers in his cell.

solitary confinement

Federal Judge Shira Scheindlin (ret.) presided over a landmark settlement forcing New York to curb solitary confinement practices. Photo via Twitter.com

Scheindlin, now retired from the bench, told Friday’s conference that setting strict limits on the length of time individuals spend in special housing units, along with requiring prison administrators to provide basic amenities such as headphone jacks and access to telephone calls, represented a step towards the goal of ensuring that solitary was not used for anything “except incapacitation of a particularly violent person.”

The specific violations that trigger a “ticket” sending an individual into isolation can vary widely across states and even individual correctional institutions in a single state, adding to the apparent arbitrariness of the practice.

Custodio recalled that while he was performing maintenance duties in the visiting area of Rikers he spotted a mother waiting to see her 17-year-old son, who had not been told that her son had just committed suicide. He decided to tell her himself, and she broke out in loud sobbing— bringing correctional officers running into the room.

Custodio says he was dragged away and thrown down the prison stairs, breaking his arm, and sent into isolation for violating a rule of never talking to outside visitors without permission.

“I can still hear those woman’s screams,” he said.

In another landmark case in Wisconsin, U.S. District Judge James Peterson ordered the Lincoln Hills juvenile detention facility to reform the practice of isolating juvenile offenders on the grounds that it violated the constitutional prohibition against cruel and unusual punishment, and in particular their “right to rehabilitation.”

In a widely quoted statement at the time, Peterson observed that “Ted Kaczynski has less restrictive confinement than the youth at Lincoln Hills,” referring to the Unabomber held at the federal Supermax prison in Colorado.

But Peterson, who also spoke at the conference, said he remained skeptical of the courts’ ability to achieve systemic and long-lasting reform.

“Solitary confinement is part of a system of control (and) if you disrupt one element, it’s going to have a consequence somewhere else,” he said, noting that the courts are put in the position of merely ensuring that prisons adhere to basic standards—“what is the worst that (we) will tolerate for a government institution”—rather than set in motion the genuine changes that only legislation can achieve.

Lincoln Hills

Lincoln Hills School for juveniles. Courtesy Wisconsin Department of Corrections

“We’re not supposed to be activists,” he said, noting that his ruling generated a backlash from angry Wisconsin legislators after a series of incidents in which corrections officers were attacked by violent youths at the Lincoln School. Peterson’s ruling was blamed for setting the climate for those incidents.

While Peterson refused appeals to reverse his ruling, he admitted that the bureaucratic process of enforcing and monitoring compliance was the “Bleak House method of reform”—a reference to the fictional decades-long legal case that was the centerpiece of a 19th-century Charles Dickens novel of the same name.

“Reforming prisons was not one of my courses in law school,” he joked.

Scheindlin, however, countered that judges needed to act when the political process seemed to be going nowhere.

“Courts are the last bastion of protecting our rights,” said Scheindlin, who won national attention for her controversial 2013 ruling ordering the New York Police Department (NYPD) to cease its “stop, question and frisk” strategy on the grounds that it violated the constitutional rights of minority New Yorkers who were disproportionally affected by the practice.

“The courts can and should be active to right (a) wrong,” said Scheindlin, who noted that since her ruling NYPD stops had been reduced by 90 percent, with no corresponding rise in crime.

“When a court is looking over your shoulder, you’re far more responsive than without it.”

All the same, outright abolition of solitary confinement appears unlikely, either through litigation or legislative action.

Many correctional institutions, echoing New York union chief Husamadeen’s argument that the system needed to ensure a way of keeping unruly or disruptive individuals away from the general prison population, merely changed their description of the isolation units or slightly reduced the restrictions on their inhabitants, in response to court injunctions or media attention, such as dropping the time required to be locked down from 22 or 23 hours to 17.

Estimates of how many incarcerated individuals are placed in isolation in state and federal institutions in any given year range from 81,000 to 100,000, but some researchers believe that if all forms of segregation are included, the number could be as much as three times that.

And no reliable figures are available to track how many are affected by the practice in the thousands of county and municipal jails across the nation.

In the meantime, those on the front lines—whether correctional officers or the incarcerated—will continue to be traumatized by a form of punishment that prisons in other countries, such as Germany, have long since abandoned as counterproductive.

Husamadeen conceded that correctional officers themselves needed the kind of de-escalation instruction recommended for police officers to handle the provocative confrontations that have resulted in controversial shootings of unarmed civilians.

It would be helpful for them to get the same crisis “scenario” training in how to deal with such incidents that’s now commonly available to police—thus reducing the need to rely on punitive segregation, Husamadeen said.

Similarly, the high proportion of mentally troubled individuals inside correctional institutions who are often placed in segregation could be reduced if more counseling or treatment were available.

But correction officers forced to deal with situations that posed threats to themselves or others had few other remedies, said Husamadeen.

“Most people have no idea what we do, and what we face on a day-to-day basis,” he added.

But for Rev. Burke and Rev. Custodio, changes in the practice of solitary—or even its elimination—won’t alleviate the need to address the trauma caused by an arbitrary and extreme form of punishment.

Such trauma leaves long-lasting psychological as well as social stigmas, which in turn cripple formerly incarcerated individuals’ ability to lead healthy, productive lives after they have served their sentence.

“It’s like Cain in the Bible,” said Rev. Custodio. “We roam the earth with a mark on our foreheads of being formerly incarcerated.”

Stephen Handelman is editor of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

Solitary Confinement Called ‘21st Century Slavery’

Eliminating the use of solitary is essential to transforming the modern culture of corrections, speakers at John Jay College said Wednesday. The college’s week-long examination of solitary confinement continues Thursday with a conference of leading researchers, legislators and advocates.

A member of the Correctional Association of New York says solitary confinement is equivalent to “21st century slavery.”

“Solitary confinement is the whipping post of mass incarceration,” Tyrrell Muhammad told a panel at John Jay College Wednesday. “We’re fighting an old fight.”

Muhammad, who works with the Prison Visiting Project of the Correctional Association,  a non-profit that advocates for criminal justice reform, said that the culture of corrections needs radical transformation, starting with how guards are trained. 

“If solitary confinement is the only kind of response you have to [disciplinary issues], you need reform,” he said.

Muhammad was part of a panel that included formerly incarcerated individuals and practitioners in the criminal justice system.

Miyhosi Benton, another speaker on the panel and a formerly incarcerated woman, described the mental deterioration she experienced during the time she spent in solitary.

Miyhosi Benton

Miyhosi Benton, associate of the Women and Justice Project , was placed in solitary when she was 19 and pregnant. Photo by John Ramsey/TCR

She was 19 and pregnant when guards told her she was being placed in solitary confinement for her own “protection.” 

“It was complete deprivation,” said Benton, who is an associate of the Women and Justice Project.

“I was hearing voices. Having conversations with myself. I was experiencing so much harm I couldn’t understand what ‘protection’ I was receiving.”

With over two million people incarcerated in the United States, about 80,000 are sitting in solitary confinement or Special Housing Units (SHU), which survivors have described as “hell in a small place.” 

Some prisoners can spend weeks, months and even years in solitary confinement for offenses such as helping another inmate with their legal affairs or talking back to guards, panelists said.

In solitary confinement, guards have full control over inmates’ meals, recreation time, mail, soap, toilet paper, etc—making the system susceptible to abuse. 

More than 60 percent of people in solitary confinement are there for non-violent offenses, the panel was told.

“The goal is to break you,” said Johnny Perez, who spent nearly three years in solitary confinement at the Rikers Island facility in New York City. Perez is now director of U.S Prison Programs at the National Religious Campaign Against Torture and a strong advocate for abolishing solitary confinement.

Perez and other speakers observed that the most difficult battle was adjusting to normal life after leaving solitary confinement.

Johnny Perez

Johnny Perez, director of the US Prisons Program, National Religious Campaign Against Torture, spent almost three years in solitary. Photo by John Ramsey/TCR

“You go from solitary to 42nd Street, but you [can’t forget] the demons you face in solitary,” Perez said. “I still have dreams about it —those demons always stay with you.”

The debate about whether or not solitary confinement is a necessary form of punishment comes at a time when New York City Mayor Bill de Blasio has announced  plans to close Rikers, which is notorious for its violence and brutality.

De Blasio and other government officials say they will move individuals held for detention at Rikers to “community-based” facilities closer to where they live, and to the courts where they were scheduled to appear.

De Blasio’s announcement came after a report issued by a commission headed by Judge Jonathan Lippman last year recommended closing the facility.

But a timetable for the closure has still not been announced.

 “It will take several years, no question,” Tyler Nimms, executive director of the commission told the panel. “There are a lot of challenges ahead.”

He added, “ You are never going to have a good jail or a perfect jail. All you can hope for is a better one.”

But will relocating the jail address the problems of mass incarceration?

Miyhosi Benton thinks it won’t.

“The criminal justice system is doing exactly what it’s supposed to be doing,” she said. “And you can’t change it because it’s a well-oiled machine.”

Muhammad argued, however, that some change can be achieved by changing the way correction officers are trained.

Correction officers “need to see themselves as therapists and counselors,” who can help turn the punitive approach to corrections into a “a rehabilitative model,” he said.

Scott Hechinger, senior staff attorney and director of policy at Brooklyn  (NY) Defender Services, said reform of solitary confinement has to begin with addressing the larger issues driving mass incarceration—including relations between police and the communities they work in.

Interactions between the “police and policed” should be reexamined, he told the panel, noting that the killings of unarmed civilians had eroded the legitimacy of police in many neighborhoods.

“For my clients it’s too dangerous for them to call the police,” he said. “There’s no trust.”

The Wednesday panel was one of the highlights of “Solitary Week” at John Jay—a multimedia exploration of solitary confinement practices, which included a model walk-through solitary cell installed as a temporary exhibit on campus.

On Thursday and Friday, 24 journalists from around the country will participate in a  workshop entitled “Rethinking Solitary Confinement: Where Do We Go From Here?” organized by the Center on Media, Crime and Justice, publisher of The Crime Report, and supported by the Langeloth Foundation.

Scheduled speakers Thursday include Homer Venters, programs director of Physicians for Human Rights; Johnny Perez of the Washington DC-based National Religious Campaign Against Torture and a former solitary detainee; Minnesota State Rep. Nick Zerwas; and Anthony Graves, a Texas death row exoneree.

Watch The Crime Report for coverage. For details and more information click here.

Megan Hadley is a reporter for The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

South Carolina’s Prison Riot: The Questions That Should Be Asked

After this week’s deadly prison riot at the Lee Correctional Institution, inmate deaths in the state have reached 13 so far this year—already close to last year’s count. It’s a sign that South Carolina’s vaunted justice reforms still leave much to be desired, says a local columnist. 

Seven dead bodies tend to focus the attention. But don’t count on it — not if they are dead men behind bars.

In South Carolina.  In an election year.

Seven inmates were stabbed and beaten to death and 17 injured in eight hours of nightmarish rioting at South Carolina’s largest and most violent prison Sunday night. Seven deaths are shocking, but not surprising to anyone paying close attention to what is going on inside the state’s prisons.

Even as the inmate population has declined, a product of the much-ballyhooed prison reform, violence behind the prison walls has exploded.

And Gov. Henry McMaster, facing a tough primary fight against a gaggle of Republicans each trying to out-Trump the other, was not about to sound soft on crime or criminals in the wake of the mayhem.

He declared: “It is not a surprise when we have violent events take place inside the prison—any prison in this country.”

If only inmates could vote.

The massacre at Lee Correctional, a maximum security prison in tiny Bishopville, puts South Carolina well ahead of 2017’s pace, which was the deadliest year on record. Eighteen inmates died in the state prisons last year—12 of them murdered by other inmates, six by suicide — according the state Department of Corrections.

The body count, which has risen four years in a row, is at 13 so far this year. In 2009, there were two deaths.

These are inconvenient numbers for the Legislature and the prison system. (And it took a Freedom of Information filing to extract the basic information about how many people are dying in the prisons.) That is because it detracts from the state’s preferred narrative that it is cutting the inmate population—and costs—through reform.

“South Carolina has led the nation in criminal justice reform,” state Sen. Chip Campsen, a co-author of 2010 prison reform legislation, wrote in a commentary for the Post and Courier last year. He said he was inspired to act by his faith.

The inmate count is, in fact, down 14 percent in five years, dropping the state’s incarceration rate to 19th in the nation from 11th as it has expanded alternatives to prison for non-violent offenders. But the violence has spiked, too, as the percentage of violent prisoners left behind has risen.

Consider: There were more than 250 inmate-on-inmate assaults that required taking prisoners to outside hospitals in 2016 and 2017, double the previous two years. Attacks on correctional officers also increased. Shivs are the weapon of choice.

Prison officials, as always, attributed the growing violence to contraband cell phones, which allow inmates to continue to fight over turf and money on both the inside and the outside.

Getting cell phones out would help stem the violence—in South Carolina and in prisons across the country.

But getting more correctional officers in the prisons would help even more. That costs money the Legislature is unwilling to spend. One in four jobs are vacant, leaving the gangs to fill the vacuum.

Willie McCray knows this all too well.

“Gangs run the prisons,” McCray, who qualifies as an expert, having spent four years in prison on drug charges, told me last year.

McCray was playing checkers in his dorm at Evans Correctional, a medium-security prison in Bennettsville, when he was leveled from behind by an inmate wielding a so-called “lock-in-a-sock,” which is every bit as brutal as it sounds. He suffered a ruptured eye socket, a fractured cheek bone and a concussion. He still wears special glasses and suffers from headaches and memory loss.

“There just aren’t enough guards,” said McCray, who is now out of prison. There was a single officer overseeing 60 inmates that day, and she was nowhere in sight. No one, as usual, was charged.

South Carolina’s prisons, like prisons everywhere, are also filled with the mentally ill. In 2016, the Department of Corrections settled a decade-old class-action suit that committed the state to upgrade mental health treatment. It has made progress, but has far to go to meet the court-ordered requirements. The recent spike in suicides—one 22-year-old died by swallowing paper clips—indicates there is much work to be done.

Last year, South Carolina prison violence became national news when four inmates at Kirkland Correctional in Columbia, the state capital, were strangled and beaten to death. Denver Simmons, convicted of the cold-blooded killing of a mother and her teenaged son, later said he and another prisoner killed the four to get the death penalty rather than spend a lifetime in prison.

Lee Correctional

Lee Correctional Institution. Photo courtesy South Carolina Department of Corrections

This year, it’s Lee Correctional.

With almost 1,600 inmates, Lee was the scene of inmate takeovers in 2012 and 2013. It has recorded 11 murders in the last three years and more serious assaults than any prison in the system. It had two suicides in two months last year.

Lee is located in Bishopville, a dirt-poor speck of a town best known as the home of “The Lizard Man,” an alleged seven-foot reptile monster that locals say rose up from Scape Ore Swamp. After Lizard Man’s first sighting in 1988, the town’s chamber of commerce was thrilled with the national attention. I’m betting it’s not so thrilled with the new headlines.

On Tuesday, the South Carolina House of Representatives had a moment of silence for the seven dead inmates at Lee. It was a nice gesture, but the state’s prisoners need more than gestures. It’s past time for the Legislature to launch a real investigation — independent of the corrections department — into the causes and cures for the mounting death toll.

Steve Bailey

Steve Bailey

Managing some of society’s most violent misfits, many of them mentally ill, is a thankless job. But when the state takes someone’s freedom, it also assumes the responsibility for their safety.

Even if they can’t vote.

See also: Prison Deaths Pile up in South Carolina: Does Anybody Care?

Steve Bailey, a former Boston Globe columnist, is a contributing columnist for the Post and Courier in Charleston, S.C. Follow him @ sjbailey1060. He welcomes readers’ comments.

from https://thecrimereport.org

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.

from https://thecrimereport.org

‘Negative’ Prison Culture Puts Communities at Risk, Report Warns

Prisons that foster a “culture of negativity” for both inmates and correctional workers make our communities less safe, according to a review of a February prison riot in Delaware. The review, led by a team from the Police Foundation, urges correctional authorities to recognize their “core” role in preventing recidivism.

Prisons that foster a “culture of negativity” for both inmates and correctional workers make our communities less safe, warns a study of a Delaware prison revolt that took the life of a correctional officer earlier this year.

The report, an analysis conducted by the Police Foundation of the February 2017 hostage-taking incident at Delaware’s James T. Vaughn Correctional Center, argued that corrections officials must take more seriously their “core” role in avoiding the high rates of recidivism that contribute to mass incarceration in the U.S.

By nurturing a culture that emphasizes “trust and legitimacy” inside prison walls, correctional authorities can ensure that inmates won’t carry their resentment and bitterness with them when they return to civilian life—and reoffend, the report said.

“It is important for correctional executives and correctional officers to recognize that most incarcerated individuals will, at some point, be released from institutional confinement and free to re-enter society,” said the report, noting that roughly 600,000 to 700,000 individuals are released from state prisons annually.

The report warned that “adversarial” and hostile prison environments not only make such facilities more dangerous places to work “but also make communities less safe once offenders subjected to these conditions are released.”

Editor’s Note: A 30-state study by the Bureau of Justice Statistics based on data collected between 2005 and 2010 found that two-thirds of released prisoners were re-arrested within three years, and three-quarters within five years. The study was released in 2014.

Instead, the report continued, corrections authorities should create an environment in which disputes are handled fairly and transparently—applying what many criminologists call “procedural justice.”

Sgt. Steven Floyd. Photo courtesy American Police Beat

The report was commissioned by Delaware Gov. John C. Carney after inmates at the Vaughn prison took workers hostage on February 1 in an 18-hour siege that left one corrections officer, Sgt. Steven Floyd, dead and several other workers and inmates injured. It was the second incident of inmate unrest at the facility in less than a month.

An independent review of the hostage-taking was conducted by a team from the Police Foundation, a think tank founded in 1970 to support innovative practices in policing. The review was led by retired Delaware Family Court Judge William L. Chapman, Jr. and former U.S. Attorney Charles M. Oberly, III.

Gov. John C. Carney. Photo by Delaware Department of Agriculture via Flickr

The team issued a preliminary report in June. The final report was released September 1.

In his response to the final report, Gov. Carney acknowledged that “we have systemic issues within our correctional system that must be addressed, and we are committed to addressing them.”

The 54-page final report contained dozens of recommendations for specific improvements in training and staffing for corrections workers and in the operations of the Delaware Department of Corrections—as well as a sweeping indictment of the correctional “culture” of the Delaware facility.

In the years leading up to the incident, the Vaughn state prison was characterized by an “institutionalized culture of negativity…in which administration executives, correctional officers, support staff, and inmates view one another as adversaries,” the report said.

Photo courtesy Delaware Department of Corrections

In a scathing assessment, the report linked inmate unrest to “adverse working conditions for correctional officers…inconsistently implemented rules and regulations, an inmate grievance procedure deemed unfair, a distrusted medical/mental health system, and a real lack of morale permeating the line officers.”

But the report also made clear that changes in specific policies, such as higher pay and better training for correctional workers and greater access to educational programs for inmates, must be accompanied by a focus on transforming the prison environment.

It urged adopting “procedural justice as the guiding principle” in the interactions between corrections administrators and staff, and between correctional staff and inmates.

“Correctional officers, much like law enforcement officers, have to strike a delicate balance between the enforcement of rules and their guardianship over inmates in order to ensure all around safe operations,” the report said.

“(But) it is important they ensure inmates are protected from undue harm and are being treated fairly and equitably.”

The authors of the report cited a warning by the 2015 President’s Task Force on 21st Century Policing that if new rules and policies conflicted with the “existing culture” of law enforcement organizations, “behavior will not change.”

“This lesson is directly applicable to correctional organizations,” the report said.

A full copy of the report is available here.

This summary was prepared by TCR executive editor Stephen Handelman. Readers’ comments are welcome.

from https://thecrimereport.org