Rising Prison Health Care Costs Increase Burden on State Corrections: Pew

In order to cope with the cost of caring for inmates growing older and sicker behind bars, state prison officials are taking advantage of Medicaid subsidies to send more incarcerated individuals to offsite hospitals or, in some cases, turning to high-tech approaches like telemedicine, according to the Pew Charitable Trusts.

America’s aging prison population is putting new strains on health care costs for state corrections authorities, according to a study by the Pew Charitable Trusts.

In order to cope with the cost of caring for inmates growing older and sicker behind bars, prison officials are taking advantage of Medicaid subsidies to send more incarcerated individuals to offsite hospitals or, in some cases turning to high-tech approaches like telemedicine, the study found.

“Corrections departments face rising health care costs for the foreseeable future,” said the study, which drew on two 50-state surveys conducted by Pew and the Vera Institute of Justice, as well as interviews with more than 75 state officials.

The main driver of health care in state prisons today is the increasing share of incarcerated individuals 55 or over, said the study authors, noting that in 44 states which responded to questions on this issue, the elderly population increased by a median of 41 percent between 2010 and 2015.

“Most incarcerated individuals experience the effects of age sooner than people outside prison because of such issues as substance use disorder, often inadequate preventive and primary care before incarceration, and stress linked to isolation and the sometimes violent environment in prison,” the study said.

Even when appropriate facilities are available inside a prison, rising costs are driving corrections authorities to send ailing inmates  to hospitals, where they can qualify for Medicaid coverage—which under federal law is otherwise unavailable to the incarcerated. Under the Affordable Care Act, states can expand the number of  low-income people aged 65 or over who can qualify  for Medicaid, and prisoners with little income can be covered by definition under this umbrella.

According to Pew, an increasing number of corrections officials in states that have opted for Medicaid expansion, which allows them to receive federal reimbursement for at least half of the costs, are taking advantage of the opportunity.

Virginia, for instance spent 27 percent of its prison health care budget on offsite hospital care in 2015.

But hospital care for the incarcerated can be a lot pricier than ordinary care, because of the additional costs of providing secure transportation and 24-hour guards. (There have been several cases where prisoners escaped from custody while enroute to hospitals.)

With more than one million adults in state prisons, authorities are “under increasing pressure to contain hospitalization costs while also ensuring the constitutional right to ‘reasonably adequate care,” the study noted.

One alternative approach used by some states to reduce costs involves the use of telemedicine and mobile health services that allow inmates to be diagnosed without ever leaving prison grounds.

Texas, for example, now conducts 11,000 patient-doctor video conferences a month for inmates—second only to the U.S. military. Some states lease a mobile mammography van to administer cancer screening tests inside their prisons for female inmates.

But while the shift to Medicaid has saved states “millions of dollars” in prison health care costs, states’ future ability to use the program may be in doubt as a result of  government efforts to dismantle the Affordable Care Act.

That only increases the burden on state policymaker “to look for ways to trim costs, especially as their prison population ages and requires more intensive and frequent care,” the study said.

The full study can be downloaded here.

This summary was prepared by Stephen Handelman, editor of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

Rising Prison Health Care Costs Increase Burden on State Corrections: Pew

In order to cope with the cost of caring for inmates growing older and sicker behind bars, state prison officials are taking advantage of Medicaid subsidies to send more incarcerated individuals to offsite hospitals or, in some cases, turning to high-tech approaches like telemedicine, according to the Pew Charitable Trusts.

America’s aging prison population is putting new strains on health care costs for state corrections authorities, according to a study by the Pew Charitable Trusts.

In order to cope with the cost of caring for inmates growing older and sicker behind bars, prison officials are taking advantage of Medicaid subsidies to send more incarcerated individuals to offsite hospitals or, in some cases turning to high-tech approaches like telemedicine, the study found.

“Corrections departments face rising health care costs for the foreseeable future,” said the study, which drew on two 50-state surveys conducted by Pew and the Vera Institute of Justice, as well as interviews with more than 75 state officials.

The main driver of health care in state prisons today is the increasing share of incarcerated individuals 55 or over, said the study authors, noting that in 44 states which responded to questions on this issue, the elderly population increased by a median of 41 percent between 2010 and 2015.

“Most incarcerated individuals experience the effects of age sooner than people outside prison because of such issues as substance use disorder, often inadequate preventive and primary care before incarceration, and stress linked to isolation and the sometimes violent environment in prison,” the study said.

Even when appropriate facilities are available inside a prison, rising costs are driving corrections authorities to send ailing inmates  to hospitals, where they can qualify for Medicaid coverage—which under federal law is otherwise unavailable to the incarcerated. Under the Affordable Care Act, states can expand the number of  low-income people aged 65 or over who can qualify  for Medicaid, and prisoners with little income can be covered by definition under this umbrella.

According to Pew, an increasing number of corrections officials in states that have opted for Medicaid expansion, which allows them to receive federal reimbursement for at least half of the costs, are taking advantage of the opportunity.

Virginia, for instance spent 27 percent of its prison health care budget on offsite hospital care in 2015.

But hospital care for the incarcerated can be a lot pricier than ordinary care, because of the additional costs of providing secure transportation and 24-hour guards. (There have been several cases where prisoners escaped from custody while enroute to hospitals.)

With more than one million adults in state prisons, authorities are “under increasing pressure to contain hospitalization costs while also ensuring the constitutional right to ‘reasonably adequate care,” the study noted.

One alternative approach used by some states to reduce costs involves the use of telemedicine and mobile health services that allow inmates to be diagnosed without ever leaving prison grounds.

Texas, for example, now conducts 11,000 patient-doctor video conferences a month for inmates—second only to the U.S. military. Some states lease a mobile mammography van to administer cancer screening tests inside their prisons for female inmates.

But while the shift to Medicaid has saved states “millions of dollars” in prison health care costs, states’ future ability to use the program may be in doubt as a result of  government efforts to dismantle the Affordable Care Act.

That only increases the burden on state policymaker “to look for ways to trim costs, especially as their prison population ages and requires more intensive and frequent care,” the study said.

The full study can be downloaded here.

This summary was prepared by Stephen Handelman, editor of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

The Violent Life of Man Accused of Killing Prison Guard

The son of two Chicago police officers, Edward Muhammad Johnson was 12 when he witnessed his father shoot his mother six times before turning the gun on himself. Decades later, he is suspected of attacking and killing Minnesota corrections officer Joseph Gomm.

The son of two Chicago police officers, Edward Muhammad Johnson was 12 when he witnessed his father shoot his mother six times before turning the gun on himself. Decades later, he is suspected of attacking and killing Minnesota corrections officer Joseph Gomm. At 42 years of age, he was already imprisoned in the 2002 murder of his girlfriend, reports the St. Paul Pioneer Press. In 2005, Pioneer Press columnist Ruben Rosario wrote about Johnson his 8-year old sister, Zakiyyah, witnessing the horrific execution of their mother, a granddaughter of the late Black Muslim leader Elijah Muhammad. Zakiyyah Johnson said then she was convinced that the childhood tragedy had a profound effect on her brother.

Fourteen years after his parents’ murder-suicide, Edward Muhammad Johnson stabbed Brooke Elizabeth Thompson to death in his apartment, where she was staying. He pleaded guilty to second-degree murder and had been serving a 29-year term at the Minnesota Correctional Facility-Stillwater. While in jail after Thompson’s death, Johnson punched a detention deputy in the eye, and was sentenced to 13 months in prison in that case. Johnson had been scheduled to be released on Dec. 12, 2022. Johnson’s disciplinary record in prison is “significant,” Minnesota Corrections Commissioner Tom Roy said. Johnson spent about 1,700 days in segregation, including a 540-day stint after a fight, but he has not been in segregation since 2016. “He has had numerous discipline items,” Roy said. “He has not been an exemplary inmate, but he has recently come around.”

Paper Prods FCC to Block Prison Phone Company Merger

The Washington Post calls on the Federal Communications Commission to block a deal that would create a duopoly in the business of providing inmate phone calls at exorbitant rates.

Phone calls between prison inmates and their families and friends often are timed,  recorded and prohibitively expensive. It can cost 21 cents per minute to make calls between states — and for calls within states, rates can exceed $1 per minute. As a result, phone bills may run up to hundreds of dollars a month — a financial burden that many inmates and families can ill afford, says the Washington Post in an editorial. Because prisons receive commissions from contracts with phone companies, they choose the service providers that offer the best kickbacks, not the ones that offer the best and most affordable services to inmates. The providers try to make up the cost of kickbacks by charging higher fees. The result is a system that profits from the vulnerability of those behind bars, says the newspaper.

A federal appeals court said the FCC did not have the authority to regulate intrastate calls, so such calls have become more costly and the situation could get worse. In May, Securus Technologies said it would acquire a competitor, Inmate Calling Solutions. If the FCC approves the deal, Securus and Global Tel Link would control as much as 90 percent of the market. The acquisition would create a duopoly in an industry that already suffers from lack of competition. The FCC found that Securus provided false and misleading information in an attempt to expedite a review. The company has come under criticism for creating a website that allowed law agencies to track non-inmates without permission. The FCC is reviewing the deal. Blocking the acquisition would not solve the issue of exorbitant prison phone rates; that is a problem for Congress and states to tackle. It would deliver a deserved rebuke to profit-hungry phone companies and the correctional facilities that have enabled them, the newspaper says.

from https://thecrimereport.org

A Parent in Prison Affects Children’s Health for Life: Study

A study published in Pediatrics found that young adults who had a parent incarcerated during their childhood are more likely to skip needed healthcare, smoke cigarettes, engage in risky sexual behaviors, and abuse alcohol and prescription and illicit drugs.

A parent’s incarceration has long-lasting effects on children’s health, according to researchers from Ann and Robert H. Lurie Children’s Hospital of Chicago.

A  study published in Pediatrics this month demonstrates that young adults who had a parent incarcerated during their childhood are more likely to skip needed healthcare, smoke cigarettes, engage in risky sexual behaviors, and abuse alcohol and prescription and illicit drugs.

Researchers observed different effects depending on the sex of the incarcerated parent. Children whose mothers were incarcerated were twice as likely to receive medical care from the emergency department rather than a primary care setting. A mother’s incarceration also doubled the likelihood that young adults would engage in prostitution.

Children whose fathers were incarcerated, meanwhile, were 2.5 times more likely to use intravenous drugs.

The Lurie Children’s study builds on previous research showing that individuals with a history of parental incarceration have higher rates of asthma, HIV/AIDS, learning delays, depression, anxiety, and post-traumatic stress disorder.

“It’s possible that because these young adults are more likely to forgo medical care and engage in unhealthy behaviors, they are at higher risk to develop these physical and mental health conditions,” says lead author Dr. Nia Heard-Garris, MSc, a pediatrician at Lurie Children’s Hospital and Instructor of Pediatrics at Northwestern University Feinberg School of Medicine, in a statement announcing the study’s findings.

The U.S. has the highest incarceration rate in the world, and more than five million children in this country have had a parent in jail or prison. In the study, 10 percent of the 13,000 young adults surveyed had a parent incarcerated during their childhood. Participants were 10 years old, on average, the first time their parent was incarcerated.

The study’s findings have particular implications for black children, who experience parental incarceration at a significantly higher rate than other populations. While less than 15 percent of the young adults surveyed were black, they accounted for roughly 34 percent of those with history of an incarcerated mother, and 23 percent of those with history of an incarcerated father.

“With the climbing number of parents, especially mothers, who are incarcerated, our study calls attention to the invisible victims – their children,” says Dr. Heard-Garris. “We shed light on how much the incarceration of a mother versus father influences the health behaviors of children into adulthood.”

This summary was prepared by TCR News Intern Elena Schwartz. Readers’ comments are welcome.

from https://thecrimereport.org

‘I Was Told to Get Naked’

Staying safe in prison is a daily challenge for Native-American transgender inmates, after the Trump administration rolled back 2012 guidelines issued by Barack Obama. Several provided tales of abuse and discrimination in a “Native America Calling” program Tuesday.

Each time Cathy Kapua, a transgender Native Hawaiian inmate who was serving time in a men’s prison for an offense committed when she was male, was transferred to a new facility in Hawaii’s correctional system, she found herself in an isolation cell.

“The (staff and warden) felt I couldn’t be put in the general population,” she said on Native America Calling Tuesday. “But they were discriminating against me…under the guise that they were protecting me.”

Prison officials claimed that Kapua would be at a greater risk of assault or rape if placed among the male inmates with whom she was housed. But Hawaii state law, which classifies prisoners based on biological sex regardless of how they present or identify, barred her from being transferred to a women’s facility.

Kapua’s predicament was precisely the kind of situation that the Obama administration hoped to address with regulations established in 2012 to protect transgender inmates from violence under the Prison Rape Elimination Act. A guidance memo was issued days before Obama left office on how to handle transgender inmates, noting that transgender prisoners face an “increased risk of suicide, mental health issues and victimization.”

But those protections were rolled back by the Trump administration in May, in response to a complaint from four Christian Evangelical women in a Texas prison. The Bureau of Prison’s Transgender Offender Manual now requires transgender inmates to be housed according to their biological sex, rather than the gender with which they identify, and restricts access to hormone treatments and other gender transition therapies.

The special problems posed to Native American trans inmates by the policy shift were explored in “Native America Calling,” a live call-in program dedicated to issues specific to Native communities, and heard on nearly 70 public, community and tribal radio stations in the United States and in Canada.

Hayley Domingo, a formerly incarcerated student and member of the Navajo tribe, described facing difficulties similar to those experienced by Kapua, adding that during her sentence, she and other trans prisoners had trouble procuring their hormone treatments and other medications.

“They told us we were not allowed to have it because it was cosmetic medicine or something,” she said. “And when we tried to order bras and underwear that we felt comfortable in, we were not allowed to.”

Both women reported abuse at the hands of other prisoners and correctional officers (COs).

On Christmas one year, Kapua described being punched in the face by another inmate while on the phone with her family.

“He said voices were telling him I was the Devil, that I didn’t belong here, that he needed to exterminate me,” she said.

Renee Gray, a Navajo consultant on LGBTQ issues, said she was repeatedly directed to undress in front of guards during her sentence, which she served in a men’s prison.

The day she was first brought to the facility, “I was told to get naked…and really just stand there and have all the men stand there and look at me as well as the COs.”

“When I went to prison I had breasts…the whole prison system had known about it, and COs would pull me aside and want me to strip down to my boxers.”

“Every single day that I worked, I had to get searched,” she said. “Or when I’m walking to the library or something, I would be told to go into a room and strip down.”

“I couldn’t ask why, or say, ‘No, I won’t do that,’ because if I did, it would be insubordination on myself and I would be sent to segregation.”

Max Lucky, an organizer with the Trans Pride Initiative and a member of the Northern Cheyenne and Choctaw tribes, said that prisoners face a tough decision when choosing whether or not to report abuses.

“On the one hand, if you advocate for yourself you could get labeled a snitch,” they said. “But on the other hand, you need to advocate for yourself in order to stay safe.”

The Trans Pride Initiative, which seeks to be a support system “on the outside” for incarcerated trans individuals, is currently challenging a statute in the Texas Family Code that bars those convicted of felonies from changing their names or their gender markers until two years after completing all terms of their sentences.

Though the state claims the statute prevents the formerly incarcerated from changing their identities to evade the law, Lucky said this concern is misguided, as the changes, once processed, are reflected in all legal documents.

Instead, Lucky said the law is a form of discrimination “that extends the sentence for trans people.”

“We can’t get jobs, we can’t access healthcare, we’re made more vulnerable when our gender identity doesn’t match our gender on our IDs or our names, so it places those barriers up,” they said. “And for someone in a lifelong sentence, they’ll never be able to change their name at all.”

Kapua, Gray and Lucky agreed that respecting the dignity of trans individuals is the first step in improving their experiences behind bars. This requires better equipping prison staff to interact with LGBTQ inmates.

“Treat me as a human person, not someone who is less than anyone else,” Gray said.

“COs need to be trained,” she continued, “because they don’t know how to talk to me or even how to refer to me. It was always ‘he, he, he, he.’”

Lucky echoed Gray’s concerns, saying, “There needs to be more accountability and transparency for prison officials and administration to protect trans people from sexual assault and rape, and that starts with giving them basic human dignity: calling them by their correct gender pronouns, calling them by their affirming name.”

Kapua believed that the voices of formerly incarcerated trans individuals could be instrumental in sparking these changes.

She first found her “calling” in advocacy when the Oklahoma facility where she was housed requested that she and other trans Hawaiian inmates teach staff members about the Native Hawaiian culture surrounding mahu (the Native term for LGBTQ) identities.

“That’s when I realized I’m not just standing up for myself,” she said. “I have an opportunity to stand up for other people so protections can be made for them as well. They don’t have to fall into the same pothole that I did.”

Today, Kapua advocates on behalf of transgender individuals like her so that others can be spared the trials she underwent.

“We’re working very hard to make sure…there’s not a double punishment just because of who you identify as,” she said.

Elena Schwartz is a TCR news intern. Readers’ comments are welcomed.

from https://thecrimereport.org

Female Task Force Seeks 50% Cut in IL Women Prison Rolls

A 100-member all-female task force of experts, current and former prison officials and formerly incarcerated women are starting a seven-year effort to lower the number of women in the Illinois Department of Corrections.

The number of women locked up in Illinois prisons would be cut by as much as half under an ambitious proposal by reform advocates, the Chicago Tribune reports.  They argue that the corrections system has largely ignored the needs of female inmates, many of whom suffered years of trauma, abuse or poverty before winding up behind bars. Though their numbers are dwarfed by the size of the male prison population, nearly 2,300 women are now serving time in Illinois. With 8 of every 10 female inmates a mother and often the primary parent, their removal from society has damaging ripple effects on families and neighborhoods.

On Wednesday, a 100-member all-female task force of experts, current and former prison officials and formerly incarcerated women will announce a seven-year effort to lower the number of women in the Illinois Department of Corrections. The task force, which includes Illinois Supreme Court Justice Anne Burke and Cook County State’s Attorney Kim Foxx, will study a wide range of options, from changing laws to designing more social service programs. Formerly incarcerated women met for the first time to discuss the project last month at Grace House, a residential program in Chicago for women exiting prison. “This is a first in the nation,” Deanne Benos, a former Illinois corrections official who is leading the effort, told the group. “One hundred women, all women, coming together to build and plan and cut the women’s prison population by 50 percent or more.” Studies in the state’s prison system show that 98 percent of incarcerated women have experienced physical abuse at some point in their lives; about 75 percent sexual abuse; and 85 percent intimate partner and stalking abuse.

from https://thecrimereport.org

In NC Trial, Inmate Says Prison Managers Allowed Violence

A former high-ranking administrator accused of fostering violence at a dangerous North Carolina prison acknowledged in federal court that he kept homemade weapons such as shanks hidden in the ceiling of his prison office.

A former high-ranking administrator accused of fostering violence at a dangerous North Carolina prison acknowledged in federal court Tuesday that he kept homemade weapons such as shanks hidden in the ceiling of his prison office, reports the Charlotte Observer. Testimony from former manager Jeffery Wall came during the second day of a civil trial examining whether Wall’s supervisor, Lawrence Parsons, the top official at Lanesboro Correctional Institution, ignored serious problems and allowed Wall to maintain a “violent, contraband-driven fiefdom.”

An investigation by the Observer last year found that state prison policies and management failures allow corruption and violence to thrive. A video taken inside Lanesboro in 2012 shows Wall meeting with gang members just minutes before those inmates, armed with homemade weapons, became involved in a fight that killed inmate Wesley Turner. Hours after the murder, video also shows Wall gesturing to the killer. To investigators and the killer’s lawyers, his meaning seemed clear: Keep your mouth shut. Later, investigators found bloody weapons hidden in the ceiling of Wall’s old office. The lawsuit on trial at Charlotte’s federal courthouse this week was brought by Stacey Wynn, an inmate who suffered serious injuries after two 2011 assaults at Lanesboro. Wynn, who is serving a life sentence on a 2008 murder conviction, was permanently disabled after one of the attacks, his lawyers say. Wynn alleges that Parsons was “willfully and deliberately indifferent” to his safety, in violation of his constitutional right to protection from cruel and unusual punishment.

from https://thecrimereport.org

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.

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