Justice Reformers, ‘Fueled by Sense of Urgency,’ Vow to End Status Quo

Jeremy Travis and Bruce Western, leaders of the so-called Square One Project, say their project will sponsor a series of roundtables across the nation aimed at transforming the justice system. According to Travis, the status quo in criminal justice is “profoundly unacceptable.”

A new push to “reimagine” the criminal justice system is “fueled by a sense of urgency” that the status quo in criminal justice is “profoundly unacceptable,” says Jeremy Travis of the Laura and John Arnold Foundation.

Jeremy Travis. Courtesy John Jay College

Travis, former president of John Jay College of Criminal Justice, and Bruce Western, now of Columbia University’s Justice Lab, led a study by a National Academy of Sciences panel four years ago that traced the sharp growth in incarceration in the United States since the 1970s.

Now, Travis and Western are leaders of a new effort funded by the Arnold Foundation along with the John D. and Catherine T. MacArthur Foundations that was formally launched on Thursday at the National Press Club in Washington, D.C.

The so-called Square One Project, promoting the idea that the justice system should be redesigned from “square one,” consists of two primary segments—an “executive session on the future of justice policy” that will help generate “a new narrative of justice in America,” and a series of roundtables across the nation to hold open discussions of key criminal justice issues.

Travis and Western made clear that the new project was conceived as a follow-up to their study on the nation’s prison growth. (It was the same issue—the fact that more than two million people are locked up in prisons and jails—that prompted former U.S. Sen. James Webb to promote the so-far-unsuccessful idea of a new national crime commission.)

Western noted on Thursday that since the National Academy of Sciences study was issued, the U.S. incarceration rate has declined a bit but remains far above the level of the mid-1970s.

In a paper on criminal justice reform issued as the new project began, Western cited “a large racial disparity: black men are five to six times more likely to be imprisoned than white men.”

Despite a series of criminal justice reforms in recent years, the fact remains that “prison populations are extraordinarily large and criminal justice agencies are focused in myriad ways on the task of punishment,” Western said.

Bruce Western

Bruce Western

One focus of the “reimagining” justice project will be on the intersection of three problems: racial inequalities, poverty and violence, Western explained.

He wrote that poor neighborhoods must “contend with violence” and that “violence can flourish where poverty has depleted a neighborhood of steady employment community organizations, and a stable population that can monitor street life.”

The first roundtable sponsored by the project, to be held in October at North Carolina Central University in Durham, will concern issues involving race and criminal justice.

Arthur Rizer

Arthur Rizer

Another strand of the project discussed on Thursday was a “call for a revised set of values in criminal justice” from Arthur Rizer of the R Street Institute, a research organization that describes its aim as helping “to promote free markets and limited, effective government.”

Rizer published a paper for the project advocating application of the limited government concept to criminal justice. He contends that “the overcriminalization and overincarceration of justice-involved individuals has resulted in the depletion of state coffers across the nation.”

“Local, state, and federal policymakers should be continuously seeking … to increase an individual’s likelihood of rehabilitation and, therefore, to reduce crime while wisely stewarding taxpayer dollars,” Rizer argues.

Travis stressed that a goal of the project, which is scheduled to last for three years, will be to “build a network” of people nationwide who will press for more effective criminal justice practices.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau chief of The Crime Report. Readers’ comments are welcomed.

from https://thecrimereport.org

North Dakota Changes the Rules on Solitary

In a response to the growing consensus that the practice of solitary confinement  is cruel and ineffective, North Dakota has reduced the number of infractions that sends prisoners into isolation—and has changed how inmates are treated if they are sent into “administrative segregation.” The reforms came after a visit by Leann Bertsch, the state’s prison chief, to Norway.

Among the slightly more than two million people incarcerated in the United States, thousands serve time in solitary confinement, isolated in small often windowless cells for 22 to 24 hours a day. Some remain isolated for weeks, months or even years.

In recent years, there has been a growing consensus that the practice of solitary confinement, sometimes known as “administrative consensus,” is cruel and ineffective.

North Dakota is one state that is addressing the drive for change..

Thanks to efforts by  Leann Bertsch, North Dakota’s director of corrections and rehabilitation, and president of the Association of State Correctional Administrators, the state has begun to change solitary from an exclusively punitive  approach to one aimed at changing behavior and helping inmates develop new skills that they can use when they are released from administrative segregation—and from prison.

Her inspiration came after a trip to Norway organized by U.S. prison reform groups.

Bertsch called it a defining moment and decided to speed up reforms already in the works for the state’s prison system.

“There’s such an overemphasis on punishment and punitiveness,” Bertsch says. “You know Norway talks about punishment that works and when they mean it to work, it’s to actually make society safer by getting people to be law-abiding individuals and desist from future reoffending.”

North Dakota prison officials met to figure out how to do that in the United States.

Bertsch says they worked to define what could land people in segregated housing in the first place.

“There were a lot of different behaviors that could get you in before so we really narrowed it down,” she says.

The Old Prison Philosophy

Solitary confinement goes by many names: the hole, isolation, protective custody, the SHU (special housing unit). Whatever the name, its designed purpose is to punish disruptive inmates who break rules and to keep the prison safe by removing them from the general population.

But for many inmates,  it left psychological scars.

“You’re shut off from the world and you wait,” says Olay Silva, a 41-year-old inmate serving time in Bismarck, N.D.’s maximum-security prison. Silva spent six months in solitary after he was involved in a stabbing.

“You just sit there and wait.”

During a tour of the state penitentiary in Bismarck, Chief of Security Joe Charvat walks over to the West Wing and gestures toward the solid doors that close off the entrance of each cell.

“This area used to house our administrative segregation unit which has since been moved to another area,” he explains.

“Administrative segregation” used to be the prison system’s name for solitary confinement. In those days, there was little contact between corrections officers and those behind the doors. Warden Colby Braun says for years,

North Dakota’s isolation unit operated just like many others.

“It was 23 hours a day lockdown. So you had one hour of recreation a day including showers. That was for five days a week,” he says. “So on the weekends you were generally locked down for 24 hours… you were in your cell, you do not come out for any reason.”

The European Influence

Now things are different. There’s much more recreation time for inmates in solitary. Prisoners spend several hours learning new skills. And they also focus on changing their behavior.

They dropped minor infractions like talking back to a corrections officer, and created a top 10 list of dangerous behaviors, such as serious assault, using a weapon and murder. The new name for the prison’s segregated housing became Behavior Intervention Unit (BIU).

Clinical Director Lisa Peterson says the goal is to help people succeed after they leave, as it was clear the old way wasn’t working.

“The idea that somebody is just going to sit there and think about what they did and magically know how to handle a situation differently in the future is not accurate. So we have to be pro-active in helping people know how to change,” Peterson says.

The state penitentiary in Bismarck can house about 800 inmates. They are mostly white. Native Americans make up the largest minority population. In late 2015 when North Dakota started changing its solitary confinement practice, there were 80 to 90 people in isolation. In late June of this year, there were only about 20.

The people in the unit go through a mental health screening to determine in part if they have any suicidal thoughts. They participate in group therapeutic sessions, and learn skills, such as how to cope with anger.

As correctional officers make their rounds, they talk with inmates about how they’re doing. Instead of just writing up an inmate for any negative behavior, officers also write “positive behavior reports” for any positive activity they notice. Skill building and rapport building are big at the prison now.

Solitary’s Impact

In the BIU, Cell 102 is empty. The door has a long vertical window plus a slot for food. Warden Braun walks in and sits on the slim mattress on top of the metal bed. In the room, there’s also a metal toilet and sink, a small metal desk and seat.

What’s surprisingly different is that there also are several electrical outlets in the room. Some prisoners who own a TV or a tablet can have it in the cell. Another narrow, vertical window lets in light from outside.

solitary

Chief of Security Joe Charvat walks the halls of the state penitentiary’s Behavior Intervention Unit (BIU) — the prison’s name for solitary confinement. Typically there are about 20 inmates in the cells, far fewer than in previous years. by Cheryl Corley/NPR

“So when you get closer to the end of the wing, the person can actually see cars going by,” Braun says.

Medical groups have issued strong warnings about how prolonged isolation causes human damage — depression, anxiety, a loss of contact with reality and suicide, especially among the mentally ill. The United Nations and other groups call it torture and say in most cases, solitary confinement should be banned. In North Dakota, the average stay for inmates, with some exceptions, is 30 to 45 days.

Inmates Respond 

Michael Taylor says the first time he landed in the old segregation unit it was for using the law library without permission.

Taylor says he was angry and acted out whenever he was placed in solitary.

“I would go back there and trash the tiers,” the 21-year-old says. “I’d argue with staff, I just didn’t care.”

Taylor says working with the therapists in the new solitary unit has made a difference. So much so that Taylor says he’d like to become a counselor after he gets out.

lay Silva agrees the switch has helped change an often tense situation between inmates, whom Silva says would curse the prison staff, and corrections officers who would often ignore the people in solitary or didn’t get them things they needed.

“That’s not really the case a lot now,” Silva says. Now officers “reward you for being involved. They don’t let you just sit back there and just basically dwell.”

Staff Buy-In Wasn’t Easy

Corrections Director Bertsch says getting buy-in from the staff wasn’t easy. The staff had to overcome the damaging perception that violence would increase and that the changes would put them at risk.

“We still have some resistance,” Bertsch says, “but when we started doing this, there was a lot of resistance and some people just needed to leave.”

Even Warden Braun had misgivings.

“I was scared to death,” he says. “I was scared for staff. I was scared for the facility. I was scared when we talked about specific guys leaving, and I was wrong.”

One of the staffers who stayed on the job is Case Manager David Roggenbuck, who oversees officers and activities in the BIU. He worked previously as an officer in the old solitary unit and was skeptical about the change at first.

“Kind of the mindset is if you don’t like being in prison, don’t come. Don’t commit a crime, don’t come. You’re here — well, tough cookies,” he says. “I’ve really looked at that and what does that accomplish? If I have that type of mentality, all that’s going to do is keep a person the same as when they came in, if not make them worse.”

Roggenbuck admits it took him awhile to change his attitude. Now, he says, everyone deserves a second chance.

For Sgt. Frantz Jean-Pierre, the switch to a unit that focuses on behavior has meant that he and other corrections officers get to know the people in the unit on a more personal level — not just as some inmate locked up in a cell. Jean-Pierre says he believes the changes have made a difference.

“In 2016 we probably had an incident down here on our shift at least maybe three or four times a week. By incident,” Jean-Pierre explains,” I mean someone trying to commit suicide, or someone trying to flood their cell, or being completely disorderly. We haven’t hardly had any of that this year. I think we’ve had one or two on our shift.”

North Dakota Advantages

North Dakota corrections officials admit that changing the prison’s solitary confinement policy may be less difficult in a state with a mostly homogenous prison population and few prison gangs.

Cheryl Corley

Cheryl Corley. Photo by Steve Barrett/NPR

Even with the reform efforts though, North Dakota officials say there are some prisoners too dangerous to eliminate segregated housing completely.

Corrections Director Bertsch says even so, prison has to be about providing an opportunity for change so that North Dakota’s effort to use solitary confinement as little as possible,  and in a different way makes sense.

Cheryl Corley, a correspondent for NPR’s national desk in Chicago, is a 2-18 John Jay Justice Reporting Fellow.  An earlier version of this story was broadcast on NPR’s “Morning Edition.”

from https://thecrimereport.org

Square One Project to ‘Reimagine’ Criminal Justice

Two major foundations, the Laura and John Arnold and John D. and Catherine T. MacArthur Foundations, along with Columbia University’s Justice Lab, are starting a new project to examine “if we start over from ‘square one,” how would justice policy be different?”

Two major foundations are funding a project they hope will “reimagine” the criminal justice system by discussing ways to “start over from ‘square one.’ ”

The Laura and John Arnold and John D. and Catherine T. MacArthur Foundations, along with Columbia University’s Justice Lab, will formally launch the Square One Justice project on Thursday in Washington, D.C.

As outlined on the project’s website, it “is taking on the fundamental issues: poverty and racial inequality, violence and safety, criminalization and punishment.

“We’re challenging traditional responses to crime, and looking in new places for more effective responses, by asking a new question: if we start over from ‘square one,’ how would justice policy be different?

The project’s sponsors contend that justice should be “created” in “neighborhoods that suffer from injustice and that deserve public safety that works.”

They contend that “the left, the right, and everyone in between agrees we need this to happen–and now is the time.”

Project leaders do not declare that they have the solutions to problems in the justice system, but they want to “incubate new thinking on our response to crime, promote more effective strategies, and contribute to a new narrative of justice in America.”

The Square One Justice project will include two new programs to help achieve its goals.

An “Executive Session on the Future of Justice Policy,” backed by from the MacArthur Foundation’s Safety and Justice Challenge, will assemble about two dozen researchers, practitioners, policy makers, advocates, and community representatives to “generate and cultivate new ideas.”

This group will meet in an “off-the-record setting” twice annually to examine research, consider new concepts, and discuss proposals from group members.

The session will publish papers to “catalyze thinking and policy reform that can reduce incarceration and develop new responses to violence and other social problems that can emerge under conditions of poverty and racial inequality.”

The project identified members of the executive session, who include Harvard Prof. Bruce Western and Vincent Schiraldi of Columbia’s Justice Lab, Jeremy Travis of the Arnold Foundation, former president of John Jay College of Criminal Justice, Vikrant Reddy of the Charles Koch Institute, retired federal judge Nancy Gertner of Boston, and former Oklahoma House Speaker Kris Steele, among others.

A separate program, called the “Roundtable on the Future of Justice Policy,” funded by the Laura and John Arnold Foundation, is a series of public, live-streamed forums involving leaders, community members, academics, and other experts to talk about discussion papers by leading researchers.

Sponsors say the papers will be “designed to spark transformational thinking about what we can expect for our communities and our justice system … creating a public record for learning and sharing information about what a new “square one” might look like.”

The first roundtable will take place Oct. 11-13 at the North Carolina Central University School of Law in Durham, N.C., with the title, “Examining the History of Racial and Economic Inequality: Implications for Justice Policy and Practice.”

The Square One Justice project will be directed by Katharine Huffman of the Washington, D.C.-based Raben Group. She is a former state affairs director for the Drug Policy Alliance and a former Soros Justice Fellow at the Southern Center for Human Rights.

The new project is one of a number of efforts in the last few years to examine broad aspects of the justice system.

These include three described last year in The Crime Report: the publication of more than 50 papers on criminal justice in a project called the “Academy of Justice” sponsored by the Koch Institute, an American Society of Criminology review of the LBJ-era commission on crime and justice, assessing what a modern-day commission could accomplish, and a parallel review of the LBJ commission on its 50th anniversary, led by the George Washington University law school.

from https://thecrimereport.org

Can ‘Preventive Detention’ Replace Money Bail?

Under a new law that went into effect this month, New Hampshire judges can no longer keep individuals accused of low-level offenses behind bars just because they can’t afford to pay cash bail. But reformers who welcome the “culture shift” also worry about a companion rule allowing those considered public safety threats to be held in “preventive” custody.

At one point in June, the Hillsborough County jail in Manchester, New Hampshire, held 32 people on bail amounts of $1,000 or less.

The charges against them—none had yet been convicted—included criminal trespassing, drug possession, breach of bail conditions, driving under the influence, shoplifting, burglary, misdemeanor assault and being a felon in possession of a weapon, according to a report from the Hillsborough County Department of Corrections.

One man, charged with “misuse of 911 system,” was held on $160 bail.

New Hampshire, by national standards, keeps relatively few people in jail pending trial. But defense lawyers say some alleged offenders, like those in Hillsborough County, are nonetheless kept in jail because they cannot afford to post even low bail amounts.

That could soon change.

Earlier this month, a significant rewrite of the state’s bail statute took effect. The new law prohibits judges from setting bail in an amount that keeps a defendant in jail because he or she is unable to post it.

At the same time, the law vastly expands the ability of judges to use preventive detention—detention without bail—for defendants whose release could endanger the public or themselves.

“It’s a cultural shift for all of our courts, because we are one of the states that has used cash bail over the years as a means of detaining people,” said Judge Edwin W. Kelly, the administrative judge of New Hampshire’s circuit courts.

How exactly that shift will play out is unclear, according to interviews with a dozen defense lawyers, prosecutors, judges, and legal experts.

The new law, those observers said, seems likely to keep those accused of low-level crimes out of jail while their cases are pending. Less clear is the role preventive detention will play, and how it will intersect with new language that bars judges from basing detention decisions solely on drug addiction or homelessness.

“What the bill affords and gives is tremendous discretion to judges,” said Colin Doyle, a staff attorney with the Criminal Justice Policy Program at Harvard Law School who studies pretrial laws and practices nationwide.

 Downplaying Cash

New Hampshire’s bail changes—passed as Senate Bill 556 with bipartisan sponsorship and signed into law by Gov. Chris Sununu in July—come at a time when other jurisdictions, including New JerseyCalifornia and Cook County, Ill., are reducing or eliminating the use of cash bail.

Reformers argue that linking pretrial release to money discriminates against people with low incomes, violates the constitutional presumption of liberty before trial and does nothing to improve safety or court appearance rates.

“We currently have a system where a lot of people are serving time behind bars before they’ve been convicted of anything,” Alex Parsons, the managing attorney of the New Hampshire Public Defender office in Keene, said last month. “And that should not be the norm.”

But New Hampshire’s bail-reform push was not without critics. County attorneys raised concerns about public safety, saying it could mean the release of some defendants who pose risks. Andrew Shagoury, president of the New Hampshire Association of Chiefs of Police, warned in an op-ed that the reform, to be successful, would require a costly expansion of pretrial services—things like monitoring, drug testing and reminding defendants of court dates.

Cash bail and other pretrial release conditions have two basic aims: making sure someone shows up to court and making sure the public is safe.

Until this month, those two prongs intertwined. A judge would decide a defendant seemed to endanger public safety, run the risk of missing court appearances or both, and come up with a bail order that accounted for those factors.

The new law effectively splits that analysis in two. If convinced that outright release would endanger society or the defendant, a judge can now order that person held without bail or impose restrictive conditions like electronic monitoring.

Otherwise, judges can set cash bail if they believe the prospect of forfeiting money will encourage defendants to show up.

But there’s a caveat: The defendant must be able to afford it and cannot be detained merely because they can’t pay.

“Essentially, if the issue that you are confronting in court is whether or not this person is going to appear, that person has to walk out the door of the courthouse,” Kelly said.

That could have an impact in Cheshire County. As of Tuesday morning, the county jail housed 46 pretrial inmates, 25 of whom had been there for longer than a month.

Some of them, accused of violent crimes, sexual assaults or other egregious offenses, were held on high bail amounts and would likely be ordered held without bail under the new statute.

Often, Cheshire County defendants who face less serious allegations are released on personal recognizance — without having to put up money. But not always. As of Wednesday morning, the county jail held nine people on bail of $1,000 or less, according to the facility’s booking department.

 Emphasizing Prevention

While cautiously optimistic about the change to cash bail, Parsons, the public defender, said he worries about the courts’ new preventive-detention powers. “My fear is that we have a lot more people simply detained without bail, whereas before they might have at least … had a chance of getting out,” he said.

Previously, New Hampshire judges could refuse bail in just a handful of situations, such as violations of domestic-violence protective orders and certain homicide cases.

In practice, that restriction led to extremely high dollar figures in some cases, all but guaranteed to keep a person charged with a serious violent offense behind bars.

“I’ve said on the record, ‘I’m setting a bail I don’t think you can post, because I think you’re dangerous,’ ” said Judge David W. Ruoff, who presides over Cheshire County Superior Court in Keene.

Usually an effective route to detention, that system was imperfect. “I’ve had cases where bail was set at $100,000—and the person had the money,” Paul G. Schweizer, a Keene-based defense attorney, said.

Prosecutors and judges said a range of offenses could qualify for preventive detention under the new law—serious assaults, sexual assaults, nighttime home invasions, perhaps some drug sales or repeat DWIs—but stressed that detention decisions will always depend on the circumstances of a case.

“Every bail decision is unique to the facts of that case,” Ruoff said. “There are cases, I think, when someone’s engaged in drug distributions where that conduct raises serious safety concerns to themselves and to the community. There may be distribution cases where that’s not true.”

Albert “Buzz” Scherr, a University of New Hampshire law professor who helped draft the law, said built-in procedural safeguards should keep detention in check.

For instance, a judge can find someone dangerous only after hearing “clear and convincing evidence”—the second-highest standard in the legal system.

“Much of this is going to be how aggressive defense lawyers are at putting the prosecutors to their proof,” Scherr said.

Unease over preventive detention is not unique to New Hampshire. California last week passed a sweeping bail-reform package that, according to Politico, eliminated the use of cash bail while expanding preventive detention and the use of standardized risk assessments.

The provisions about detention and risk assessments alienated some of the bill’s onetime supporters. Critics say standardized risk assessments can discriminate against minorities by reflecting underlying racial disparities.

The Granite State’s law, by contrast, makes no mention of risk assessment tools, though Kelly said a state criminal-justice council is looking into the possibility.

Doyle, of the Criminal Justice Policy Program, said an approach like New Hampshire’s “allows for a more case-by-case approach.” But that flexibility can make outcomes less certain, he added.

“Judges’ incentives can easily get misaligned,” he said. “… If they release someone pretrial, and that person commits a crime, then the judge’s photo shows up in the newspaper.”

Meanwhile, local prosecutors say they’re waiting to see how the courts will interpret a key provision of the law, which says findings of dangerousness “shall not be based solely on evidence of drug or alcohol addiction or homelessness.”

One question, Cheshire County Attorney D. Chris McLaughlin said, is “how you deal with a situation where, you know, someone’s a heroin or fentanyl addict, they’ve got a long history of committing crimes while under the influence, they’ve overdosed 10 times in the past, and they’re homeless.”

The new law doesn’t force judges to ignore concerning behavior just because it’s linked to drug use, McLaughlin and others noted. “If somebody commits a serious felony-level offense, the fact that they are addicted really wouldn’t impact your decision on dangerousness,” Kelly said.

Whether a judge can detain someone whose substance use puts them at serious risk of a fatal overdose is less clear. Kelly believes he cannot. “The Legislature is saying, ‘You can’t consider that,’ ” he said. Ruoff, however, said some of those cases aren’t just about addiction but “addiction plus the level of their use.”

Sullivan County Attorney Marc Hathaway worries the language about addiction will hinder efforts to detain people whose use of potent illegal drugs endangers themselves or others. He said he plans to ask for rulings that clarify those issues.

“Remember what the purposes of bail are: to protect the public safety, to protect the accused and to protect against the risk of flight,” he said. “There is no greater risk to a person in our society today than being addicted to heroin or using fentanyl and carfentanil.”

Ultimately, Scherr said, it’ll be up to lawyers and judges to work through those issues — nothing unusual in a system that depends on judicial discretion and the adversarial process.

“It would be a bad law if it was (based on an) algorithm,” Scherr said. “… We want to force the judges to pay attention to the individual more, but we want to force them to do it in an environment with some clear standards.”

 Paul Cuno-Booth, a staff writer for the Keene Sentinel, is a 2018 John Jay Rural Justice Reporting Fellow. This article, which was published this month in the Sentinel, was part of his fellowship project. Follow Paul on Twitter at @PCunoBoothKS. He welcomes readers’ comments.

from https://thecrimereport.org

Too Big to Jail: Letting White Collar Criminals Off the Hook

The idea that some corporations are too important to the economy to suffer criminal consequences for wrongdoing only produces higher rates of corporate chicanery, according to a forthcoming study in the Yale Law Review.

Allowing major corporate wrongdoers to escape criminal penalties by using heavy fines or deferred prosecution agreements makes it harder to deter financial crime and creates “disturbingly high” rates of repeated white-collar fraud, according to a forthcoming paper in the Yale Law Review.

It also reduces public confidence by creating “a popular narrative that prosecutors permit (financial) managers to buy their way out of trouble,” wrote Nick Werle of Yale Law School.

The paper, entitled “Prosecuting Corporate Crime When Firms Are Too Big to Jail,” suggests that the belief that some firms are so critical to the economic system that ‘the government cannot credibly threaten them” with criminal sanctions has given those a large corporations in turn little incentive to curtail crimes such as fraud, bribery, environmental safety offenses, antitrust violations, and money laundering.

Fines are almost always the only penalty they face.

“Relatively few” individuals are ever prosecuted, and even when they are, their sentences are “generally more lenient” than defendants who are “outside the corporate crime context,” the paper said, noting that corporate defendants are sentenced to jail less often and serve shorter sentences.

According to Werle, the idea that some firms are “Too Big To Jail” (TBTJ) means in practice that “prosecutors will not hold them accountable” for any crimes they commit.

“When firms become TBTJ, deterrence breaks down,” he wrote.

In fact, Werle added, when a corporation contemplates “a highly profitable but illegal opportunity,” it may figure into its costs the size of a possible corporate fine if they are caught, knowing that they can play the “TBTJ” card if investigated. In other words, they will never be fined an amount that they can’t cover because the government won’t want to bring down a corporation important to the economy.

In such a calculation, the corporation may decide that crime does pay.

The paper calls for prosecutors to alter their strategies and investigative tactics, to prosecute culpable individuals, reduce their reliance on corporate cooperation, and insist on structural reform of the companies. It zeroes in on the government’s reliance on Deferred Prosecution Agreements (DPA).

In a DPA, the government agrees to accuse the company of wrongdoing while not prosecuting a crime; afterward, there is usually a large fine, and the company says it will clean up its act. Whether it really does so is debatable, said Werle.

According to Werle, “the list of corporate recidivists with multiple convictions in quick succession includes many corporations with dominant positions in their industries, including BP, ExxonMobile, Pfizer, GlaxoSmithKline, AIG, Barclays, HSBC, JPMorgan, UBS, and Wachovia.”

There was widespread criticism over the lack of prosecutions of TBTJ global corporations after the 2008 financial crisis, noted Werle.

The criticism intensified after the March 2013 Senate Judiciary Committee hearings on the DPA arranged by the Department of Justice (DOJ) with the global bank HSBC for facilitating money laundering by Mexican cartels and others.

“Despite the lurid details, the bank paid $1.92 billion and no individuals were prosecuted,” Werle wrote.

A high-level DOJ official admitted during the hearings that prosecutors consult with regulators and change strategy when told bringing a case might wreak serious economic damage.

“Deferred prosecution agreements are the norm, even though they are subject to few statutory procedures or binding regulations,” wrote Werle.

While in recent years, those charged with white collar crimes have been prosecuted, it’s rarely the case with people employed by a TBTJ company. Many have pointed to the existence of the “revolving door” between DOJ and the private sector.

“Critics have described a culture of deference to corporate defendants, an unwillingness to accept the risks of taking complex white-collar cases to trial, and an eagerness to settle, even if that meant forgoing cases against individuals,” said the paper.

Werle called for legislative reform that would introduce “binding procedural requirements and meaningful judicial review.”

Prosecutors should not “rely on corporate fines to do the job alone,” he concluded.

A complete copy of the paper is available here.

Nancy Bilyeau is Deputy Editor-Digital  of The Crime Report. She welcomes readers’ comments.

from https://thecrimereport.org

Five States Prove that ‘Substantial’ Cuts in Prison Populations Are No Pipe Dream

It doesn’t matter if you’re red or blue. If you’re willing to adopt—and pay for—evidence-based reforms, you can match the achievements of Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina over the past decade, according to The Sentencing Project.

Bipartisan collaboration and consistent funding of evidence-based reforms helped slash prison populations in five states with dramatically different demographics and political leanings, according to a study by The Sentencing Project.

The results, charted over roughly a decade in Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina, should be a signal to the rest of the country that “substantial reductions” are possible without endangering public safety, the study authors said.

“We now have evidence that substantial reductions in prison populations are possible in red and blue states,” said Marc Mauer, executive director of The Sentencing Project, and one of the authors of the report.

The analysis found reductions ranging from 14 percent in South Carolina to 25 percent in Connecticut over a period starting about 2007 and ending in 2016.

The reductions “produced a cumulative total of 23,646 fewer people in prison with no adverse effects on public safety,” the report said.

That represented a sharp contrast to the national average over the same period. Although inmate populations have begun to decline, the study cited a recent analysis showing that at the current average nationwide rate of change from 2009 to 2016, it would take 75 years to reduce the country’s prison population by half—and while 42 states have experienced declines from their peak prison populations, 20 of these declines are less than 5 percent.

Moreover, eight states are still experiencing rising inmate populations.

The factors responsible for the declines were different in each of the five states, but the authors identified “key strategies and practices” that all of them shared.

They included:

  • High-profile leadership, bipartisanship, and collaboration among all components of the state justice system;
  • An ability to apply outside technical assistance and research findings to evidence-based reforms;
  • Strong community engagement to drive re-entry and community supervision programs;
  • Reductions in criminal penalties, and the expansion of specialty and alternative courts; and
  • Incorporation of  “dynamic risk and needs assessments” into the sentencing process.

The study made clear that none of these factors alone guaranteed long-term reductions, adding that a sustained effort to reduce the use of prison as primary punishment—often called “decarceration”—required consistent and adequate funding to pay for the reforms.

But the authors said their findings underscored the fact that by developing a “roadmap to decarceration“ attuned to the individual needs and policy preferences of each state, the nation could achieve far greater reductions in mass incarceration than were commonly assumed by most analysts.

All five states were engaged in the Justice Reinvestment Initiative process, spearheaded by the Pew Charitable Trusts and the Council on State Governments, which was designed to respond to the drivers of prison expansion in each state, and to develop strategies for changes in policies and practices.

“Policymakers around the country have much to learn from the population reduction successes of the five states documented in this report, as well as others that have achieved double-digit reductions in recent years,” the report said.

“(It) reinforces the finding that just as prison populations rose during the 1980s and 1990s due to policy choices, so too can they decline as policymakers adopt targeted goals and strategies.”

The other co-authors of the report were Dennis Schrantz, a corrections consultant and the former deputy director of the Michigan Department of Corrections; and Stephen T. DeBor, the senior policy executive in charge of research, planning and automated data systems for the Michigan Department of Corrections.

A complete copy of the study can be downloaded here.

from https://thecrimereport.org

How to Address Jail Overcrowding: Rethink Who Goes in Them

A special “population review team” in Ohio’s Lucas County explores ways of reducing jail time for new or low-level offenders. “Maybe jail isn’t the right place” for many of them, explains Gene A. Zmuda, a common pleas court judge.

On a recent afternoon at the city hall in Toledo, Ohio, Holly Matthews was teaching her colleagues some slang. “I forgot to tell everyone my new word of the day,” she says. “It’s ‘pookie.’”

A pookie, Matthews explains, is another word for a crack pipe. “I checked with Urban Dictionary,” she says, chuckling.

Matthews is executive director of the Criminal Justice Coordinating Council, an agency that provides criminal justice information services to residents of Lucas County in Northwest Ohio.

She is also one of a dozen members of the county’s Population Review Team, an interagency group that seeks ways of reducing or eliminating jail time for new or low-level offenders, with the goal of reducing incarceration rates in Lucas County’s overburdened jails. (Matthews’ “pookie” was in a case file she was reviewing, found by police in the pocket of a man who was arrested after a domestic dispute.)

The atmosphere in the room can be lighthearted, but the Population Review Team’s work is serious business — especially in Toledo, the Lucas County seat, where reducing incarceration rates is sorely needed.

The county’s jail is designed to hold only pretrial inmates, but it is being overburdened by too many people waiting to see a judge. In 2014, a U.S. Federal judge ordered the county to cap its jail population, which had a capacity of 346 beds. Two years after the cap was set, the jail’s population has been reduced to 667 people — down from 845 in 2016 — for the first quarter this year, according to Matthews.

To try and address these issues of overcrowding, the Population Review Team meets once a week to review the county’s jail cases to find ways to reduce bail, alter criminal offenses and, in some cases, eliminate or reduce jail time completely.

Toledo isn’t alone in dealing with overcrowded jails.

Nationally, jail populations have been steadily rising, contributing to high incarceration rates throughout the country. Daily local jail populations swelled from 157,000 in 1970 to over 700,000 people in 2015. Annually, there are close to 11 million admissions into jails, according to data collected by the Vera Institute of Justice.

“It’s become a crisis because as we’ve added laws that impose mandatory sentencing,” says Gene A. Zmuda, a common pleas court judge for Lucas County. “We are incarcerating more and more of our population.”

For those on the Population Review Team — along with Matthews, the group includes local correction officers and defense attorneys — this means reviewing rap sheets to determine if there are ways to release inmates without putting the public at risk, such as increased usage of electronic monitoring.

In other cases, plea deals are brokered, according to Sean McNulty, chief public defender for the Toledo Legal Aid Society and an original member of the review team. Candidates who are deemed “good” — those with misdemeanor charges or nonviolent crimes — can have their bail modified or their case expedited or, in some cases, they are simply set free.

Zmuda invokes an example of a first-time drug user.

“Maybe jail isn’t the right place for that person,” he says. “Send them to rehabilitation and break the cycle of addiction.”

The program started in 2016, after the John D. and Catherine T. MacArthur Foundation awarded the county a $2 million grant directing local mental-health organizations to partner with law enforcement officials, with the intent to “institute changes aimed at reducing local incarceration and disparities in jail usage in accordance with its implementation plan.”

Over the course of an afternoon, the team isolates about a dozen defendants in custody whose charges will be reviewed. During a recent meeting, McNulty and John Madigan, the city’s prosecutor, were able to agree to several resolutions for a handful of people who were sitting in the county’s jail. The negotiations included a reduced charge, credit for time served and a probation term.

According to Matthews, this comprehensive collaboration and review reduced 1,800 jail days in total for 2017. And while the jail’s population isn’t as low as officials want it to be, they point to the reductions they’ve made in the past two years, by almost two hundred inmates in total.

“Jail buildup happened over 40 years and it won’t be solved in just a year or two,” says Patrick Griffin, the senior program officer for the MacArthur Foundation.

Along with the review board meetings, Lucas County officials have implemented four other strategies — such as training cops to identify alternatives to arrests or keeping people with mental health issues out of jail — to help in reducing the county’s jail population.

And as the initiative continues, Griffin hopes that solutions like the ones being implemented in Lucas County will spread to other parts of the state, and beyond.

“It will take success and then practitioners will take notice,” he says. “We have to increase demand among citizens for jail reform.”

Zmuda, McNulty and others believe that the next important step will be addressing the overrepresentation of minors in the system, along with keeping substance abusers from getting swept into the jail.

“We’re holding fewer — and holding the right — people,” says Zmuda. “We have right-sized our jail.”

Eric Jankiewicz is a 2018 John Jay Rural Justice Reporting Fellow. This story was published as part of his fellowship project. The full version is available here. Readers’ comments are welcome.

from https://thecrimereport.org

Federal Prison Reform Backers Cite Kentucky Survey

To pressure Senate Majority Leader Mitch McConnell of Kentucky to schedule a vote on a prison reform bill, advocates say a survey shows that 70 percent of Kentuckians back it. McConnell won’t bring the bill to the floor before the midterm elections.

Supporters of efforts to improve federal prison conditions are using a poll of Kentucky voters — and President Trump’s son-in-law Jared Kushner — to pressure Senate Majority Leader Mitch McConnell into putting legislation up for a vote, McClatchy Newspapers reports. Kushner joined a call Thursday with Sen. Rand Paul (R-KY) and conservative prison reform advocacy groups to tout a poll of Kentuckians that found widespread support among Republicans, Democrats and independents for legislation that would beef up education, vocational training and rehabilitation programs in the federal prison system. “This is not a red state issue or a blue state issue, this is a real issue that Americans want to see advanced and they want to see politicians in Washington make progress,” Kushner said.

Critics say the bill, which has been passed by the House, doesn’t address the “front end” problem of longer prison sentences which have fueled decades of growth in the federal prison population. A Senate proposal would loosen federal sentencing guidelines for repeat non-violent drug offenders and scrap the “three-strike” mandatory life in prison provision. Attorney General Jeff Sessions called the proposal a “grave error,” while some senators have been seeking a compromise that would combine provisions of both bills. McConnell has made it clear after the meeting that the legislation won’t come up for a vote before the November election. Paul said the bill could get 65 to 70 votes in the Senate. Pollster Robert Blizzard said a poll of 500 people in Kentucky found 70 percent support for what was described in the poll as bringing “President Trump’s prison and sentencing reform bill” to a vote.

from https://thecrimereport.org

California Scraps Cash Bail to ‘Treat Rich and Poor Fairly’

California will become the first state to end money bail under a new law that will take effect in October, 2019. Under the measure, courts will use algorithms to decide who needs to be kept in custody ahead of trial—but critics, including the ACLU, say the new system may perpetuate discrimination. 

California will become the first state to abolish money bail for suspects awaiting trial, under a sweeping reform bill signed by Gov. Jerry Brown , reports NPR.

The measure, due to take effect in October 2019, means defendants will no longer be required to put up money or borrow it from a bail bond agent in order to secure release ahead of their trials. Instead, courts will use algorithms to decide who to keep in custody and who to release pending disposition of the case.

Gov. Brown, who has been pressing for bail reform for nearly four decades, said the California Money Bail Reform Act will ensure “that rich and poor alike are treated fairly.”

But many critics, including the American Civil Liberties Union (ACLU), said they were disappointed that the measure didn’t go far enough—and could further worsen racial bias and economic inequities in the courts.

“They took our rallying cry of ending money bail and used it against us to further threaten and criminalize and jail our loved ones,” Raj Jayadev, co-founder of advocacy organization Silicon Valley De-Bug, and a former supporter of the bill,  told the Sacramento Bee.

Under the Act, in most nonviolent misdemeanor cases, defendants would be released within 12 hours. Other defendants will be scored on how likely they are to show up for their court date, the seriousness of the crime, and the likelihood of recidivism.

The ACLU pulled its support, arguing that last-minute changes give judges too much discretion.

On the other side of the argument, the American Bail Coalition, which represents bail providers,  likely will challenge the law in court

Bail reform has gotten increased traction across the U.S.

Washington, D.C., already has a cashless bail system. Some states, including New Jersey, have passed laws that reduce their reliance on money bail. Other states are considering making similar changes.

At a meeting last spring, policies of prosecutors elected on progressive platforms around the U.S. were praised for showing promise to reduce the nation’s incarceration totals,

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff  in March to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

See also Cherise Fanno Burdeen in TCR, “Is a Common Sense Approrach to Bail Reform Finally gaining Traction?

At the federal level however, bail reform still appears to be stalled.

Senator Bernie Sanders (I-VT) introduced legislation earlier this year that would end money bail on the federal level and incentivize states to do the same.The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.

from https://thecrimereport.org

Elder Abuse: Should Prosecutors Press Charges if Victims Balk?

Elders are often reluctant to press charges for abuse because they don’t want to lose the support of caregivers—even if those caregivers were responsible for the abuse—but prosecutors should try to persuade them otherwise, say some advocates. “A good prosecutor will do everything they can to try and persuade the victim to go forward with the case,” says Oregon Attorney General Ellen Rosenblum.

When  Rita Armaganian went to visit her 80-year-old next-door neighbor, Hilda Bassett in Warwick, R.I., she noticed a small spot of blood on Hilda’s cheek and a large bruise. Her glasses lay broken. Bassett admitted that her daughter had slapped her in the face. The victim eventually provided a statement, and the daughter was charged.

But three weeks later, Rhode Island prosecutors dismissed the case “in the interests of justice.”

The 2007 case underlines a poignant fact: elders are often reluctant to press charges for abuse because they don’t want to lose the support of caregivers—even if the caregivers were responsible for the abuse, reports the Providence Journal.

And authorities and advocates for the elderly generally defer to the victims.

“The victim, unfortunately, will often try to protect the perpetrator of the crime because it’s someone they love or want to love, and these are often the people taking the most advantage of them,” according to Oregon Attorney General Ellen Rosenblum.

Oregon’s Department of Elderly Affairs handles such cases, and five investigators each handle 30 to 35 cases monthly.

“We can’t force services upon elder adults,” said supervisor Boakai Kamara, nor can they require cooperation with the police. “They have the right to say no if they want to live with the person who is abusing them.”

In cases where the perpetrator is the victim’s only caregiver, pressing charges can mean losing the victim’s sole support. Caregivers have “a lot of influence,” said Julie Schoen of the National Center for Elder Abuse at the University of Southern California.

“And that’s what the person will use against [the elder]. It’s very understandable how it happens.”

Rosenblum said that in abusive relationships, not prosecuting a case can leave the elder in a dangerous situation. “I’ve seen situations where people didn’t want to prosecute, and it has happened again and again … it really puts the victim at extreme risk,” she said. “(Good prosecutors) will do everything they can to try and persuade the victim to go forward with the case.”

See Also:  Elder Abuse: The Almost Invisible Crime

from https://thecrimereport.org